This is an action to enjoin the use of plaintiffs’ trade mark, adopted in pursuance of the Act of April 3d, 1863. The averments of the complaint as to what constitutes the plaintiffs’ trade mark are somewhat loose. Their compound was named “ Concentrated Erasive Washing Powder,” and it is alleged to have been sold “in packages of one third, one, and ten pounds, each labeled with their own proper device and trade mark, adopted by said Cogswell & Thomas for that purpose on the 22d day of February, 1865, aforesaid, and filed in accordance with the statute in such eases made and provided, in the office of the Secretary of State, of which label a copy is hereunto attached, and marked ‘ Exhibit A.’” Said exhibit is the entire label, and the whole is claimed in argument to be the trade mark, and I think, upon the whole, it is substantially so averred.
It is not pretended that the plaintiffs have any exclusive right, by patent or otherwise, to make or vend the compound itself. If they have any right of action, it is, in the language of the statute, for the use of their “ trade mark or name for the purpose of representing” defendants’ compound “to have been manufactured or sold * * * or to be of the same kind, character, or quality as that manufactured and sold” by the plaintiffs.
The plaintiffs’ label annexed to the complaint is headed *73by a very highly colored, conspicuous, and striking cut, in the form of a parallelogram, surrounded by the name of the compound in black capital letters, thus:
The cut represents two women dressed in red garments, each engaged in washing at a yellow washtub resting upon a bench; while a third woman, dressed in similar colors, apparently a customer, is in the act of addressing the washers. In the background is a clothesline, with various articles of clothing hung upon it to dry, and in the foreground a basket of clothes, and a box labeled “Standard Soap Co. Soap.” Towards the bottom of the label, in the form following, are the words:
MANUFACTURED AT
204 SACRAMENTO STREET,
Ban Francisco.
The rest of the label contains full directions for using, and an indication and commendation of its qualities; the whole label, except the cut, printed in black ink.
The defendants’ label, also annexed to the complaint, has no cut whatever. It is printed upon paper of the same color as that of plaintiffs’, headed with a square, formed by a light red line within a heavy red line, inclosing the name of defendants’ compound, etc., thus:
*74
The words “Washing Powder,” being in red, and all the rest of the label in blue ink—the signature being in script.
Hear the bottom of the label, at a point corresponding with a similar notice in plaintiffs’ label, in the following form, are the words:
manufactured by
LUCY & HYMES,
Factory—Beale Street, between Mission and Howard, San
Francisco.
Office—No. 319 California Street.
The directions for using, indications of qualities, commendations, etc., are in small type, and with the exception of the color of the ink, which is blue, are exact copies of those in plaintiffs’ label.
The defendants have another label, which presents no greater similarity to plaintiffs’ label than the one described.
Have the defendants been guilty of using the plaintiffs’ name or trade mark, or of a similar name or trade mark ?
It is as descriptive of one as the other, and may he equally descriptive of any one of numerous other compounds that *75are, or may be, made. In the language of the statute, there is nothing “peculiar” about them, or in their combination, or use. Any soap suitable for washing in the form of a powder, may be very properly called washing powder. These two words belong to the English language, and are in very common use, and "words of that character are not the subject of exclusive property. Suppose the word, “soap,” had been used in the place of washing powder, I apprehend it would not be pretended that the plaintiffs could acquire an exclusive property in the word, “soap,” so that no other party could adopt it as a part of the name, or description of any compound he might manufacture and sell for the ordinary purposes to which the numerous varieties of soap are applied. So the words, “washing powder,” are no more descriptive or indicative of the plaintiffs’ soap, than of any other of a great variety of powders, that are, or may be, compounded suitable for washing. They simply indicate a compound, in the form of a powder, used for washing, possessing many attributes common to many other compounds. They point to no particular person as the maker, and do not express the origin, ownership, or place of manufacture, or sale. It is a sort of generic, and not a “peculiar” term.
*74It is manifest from inspection that the two names and headings—the most conspicuous parts of the labels—are not the same. “ Standard Soap Company’s Concentrated Erasive Washing Powder” is, certainly, a different name from “Lucy & Hymes’ Excelsior Washing Powder.” Washing Powder is the only portion in common, or in the slightest degree similar, and this is not a distinctive appellation.
*75The law applicable to trade marks has been much discussed within the last few years, and in no cases, perhaps, more thoroughly than in Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599; Corwin v. Daly, 7 Bosw. 222; Coats v. Holbrook, 2 Sandf. Ch. 587; Taylor v. Carpenter, 2 Sandf. Ch. 603; Newman v. Alvord, 49 Barb. 590; see, also, Partridge v. Menck, 2 Sandf. Ch. 625; Williams v. Johnson, 2 Bosw. 1; Stokes v. Landgraff, 17 Barb. 608; Fetridge v. Wells, 4 Abb. 144; Clark v. Clark, 25 Barb. 77; Brooklyn White Lead Company v. Masury, 25 Barb. 417; Wolfe v. Goulard, 18 How. Pr. 64; Coffeen v. Brunton, 4 McLean, 516; Burnett v. Phalon, 9 Bosw. 192; Howe v. Howe Machine Co., 50 Barb. 241, and cases referred to in those cited. From these authorities it would appear, that the rule at common law is against appropriating mere words as a trade mark, unless they indi*76cate ownership or origin, having no reference to quality or use. But some modern authorities do not seem to regard any direct reference to origin or ownership in the signification of the words themselves necessary. (Sexio v. Provizinde, 1 Law R. Ch. App. 192; Ainsworth v. Wamsley, 1 Law Rep. Eq. 523; 3 Am. L. Rev. 189.)
The ordinary words of the language, merely as words or names, expressing the kind or quality of the articles to which they are applied, and which may he common to different articles, are not the subject of property. (See, particularly, Corwin v. Daly, 7 Bosw. 233; Stokes v. Landgraff, 17 Barb. 609; Wolfe v. Goulard, 18 How. Pr. 69; Amoskeag Man. Co. v. Spear, 2 Sandf. 600; Benninger v. Wattles, 28 How. Pr. 206; Newman v. Alvord, 49 Barb. 591.) This rule, however, appears to have reference to the use of words, etc., merely, and not to their combination and arrangement. (Williams v. Johnson, 2 Bosw. 1.)
I think the plaintiffs could acquire no exclusive right of property in the words “washing powder,” and that they are not entitled to have the defendants enjoined from using them as a part of their own name, or trade mark. As to the rest of the name, that part of it, and that, alone, which can with any reason be regarded as distinctive or indicative—“ Standard Soap Company’s Concentrated Erasive ”—is as far removed from similarity to “Lucy & Hymes’ Excelsior” as it could well be. One is as peculiar as the other. Each points to particular persons as the makers. Each expresses origin and ownership. One points to the “Standard Soap Company,” the other to “Lucy & Hymes.” And when we look for an indication of the place of manufacture, we find 'the former proclaimed in large capitals to be “Manufactured at Ho. 207 Commercial street, between Front and Davis, concrete building, San Francisco,” and the other, in capitals equally conspicuous, “Manufactured by Lucy & Hymes. Factory, Beale street, between Mission and Howard, San Francisco. Office, Ho. 319 California street.” The defendants make it appear as prominent as possible that they are selling a com*77pound of their own manufacture as their own, and by their own particular name, giving the place where it is manufactured and where it is to be obtained; and the name of the compound, of the makers and owners, and the place where made, are all different from those pertaining to plaintiff’s compound. A party who can read, and who has once become acquainted with plaintiffs’ label, could not possibly mistake one for the other. Still less are the illiterate liable to be misled. The modest square formed by simple red lines inclosing the name of defendants’ compound, displaying in large capitals, “Lucy & Hymes’ Excelsior Washing Powder,” could by no possibility be mistaken for the plaintiffs’ flaming cut of the washerwomen at their work. And the same may he said of the cut upon defendants’ other label. These are the only prominent and striking features in both labels, and the only ones at all likely, as peculiar symbols, to attract the attention, or impress themselves upon the minds of illiterate parties using, or desiring to purchase, the respective compounds. And they are as different as they can well be. As to this part of the label, there is no infringement upon, or imitation of, plaintiffs’ trade mark.
But the entire body of defendants’ label, except the heading, the names of the makers and place of manufacture, is a verbatim copy, and as to type and mode of setting up, is very nearly a fac simile of the plaintiffs’ label. It is as follows:
“SAVES LABOE AFTD TIME.
“Directions for Washing.—For a washing of 40 or 50 pieces:
“1st. Take two pails of water, and put therein one fourth of this package, or one fourth of a pound of the powder.
“2d. Bring the water to a boiling heat.
“ 3d. Pour this boiling water or solution on to the clothes, and let them soak for half an hour or more, and while they are soaking stir them briskly with a staff or dasher three or four different times.
*78“4th. Wring them out, rubbing the soiled spots slightly.
“ 5th. Put them in the boiler, adding two or three tablespoonfuls of the powder.
“After boiling three minutes, remove them, rinse them well in two waters, blueing the second water.
“ This soap, used according to the above directions, saves one half the labor, and the clothes will come out beautifully clean and white.
“Warranted not to rot or injure the clothes.
“This washing powder contains all the requisite properties to make a fine soft soap.
“ Give it a trial and judge for yourselves.”
“Directions eor Making Soft Soap.—Dissolve the contents of a one pound package in four quarts of boiling water; when thoroughly dissolved, add sufficient water to make two gallons; or should you desire to make the soap thinner, add water at pleasure.
“Put up in one pound packages, 12 and 24 in a box; and in ten pound boxes, in bulk.
“bio person will be without this valuable compound after once having given it a trial.
“Adapted for hard and salt water. Superior for washing fine goods and woolens without shrinking.
“bio soap is required with these powders.
“ These powders may be used in the place of soap wherever soap is required, and will be found more convenient and economical for washing woodwork, dish-washing, etc. A little experience in using it will enable a person to judge of the quantity required.”
Strictly speaking, these descriptions and directions are, perhaps, not the technical trade mark. But they are always found upon the labels accompanying certain classes of articles in connection with the trade mark proper, as auxiliary to it; and, in many of the cases cited, they are noticed in the discussion, as forming a part of the devices, and symbols *79illustrative of the claims and designs of the parties using them, and treated as being within the protection of the laws. The statute does not limit the parties to any particular number of symbols, devices, letters or words, or any particular combination. The whole label appears, I think, from the allegations of the complaint, to have been filed as the plaintiffs’ trade mark. Whatever the rule may have been before, I think this portion of the label within the scope of the protection afforded by the peculiar language of, at least, one provision of the statute. It provides, that “it shall he unlawful for any other person, without his (the owner’s) consent, to use said trade mark or name for the purpose of representing any -article * * * to be of the same kind, character or quality as that manufactured or sold by the person rightfully using said trade mark or name.” This provision seems to be intended to make it unlawful for a party, other than the owner, to use the trade mark, or any imitation of it, even upon articles ostensibly manufactured and sold by himself, as his own, for the manifest purpose of representing them to be of the “same kind, character or quality,” as the articles manufactured and sold by the owner of the trade mark. If this is not the meaning of the provision, it is difficult to give any meaning to it. The object would seem to be, where one party has acquired a reputation for his wares, to prevent another party, who has a right to make and sell the same wares in his own name, from availing himself of the reputation which the same article has acquired through the labors and at the expense of the party originally making and vending it. Thus the plaintiff’s “ Concentrated Erasive Washing Powder,” may, after years of labor, and by means of a large expenditure of money, have become generally and extensively known and used, and have acquired a great reputation as a useful and valuable compound. Yet the public feel no interest in the proprietor, and it is a matter of no consequence to it, whether the article is made or vended by him, or some other party, or under one name, or another. All the public cares *80to know, is, that it gets the article possessing the identical qualities, and whether it is made by the original manufacturer, or somebody else, or under the original, or some other name, is not a matter of the slightest concern. How, if the defendants’ article presents the same appearance, is accompanied by a label giving precisely the same directions for its use, and other descriptive matter, showing that it is used for precisely the same purposes, possesses precisely the same qualities, and produces exactly the same effects, the public would be justified in believing, and probably would believe, that it was the identical article manufactured by another party, under another name, and purchase it as such. If found to answer the same purpose, of course, those having occasion to purchase would as soon have one manufacture as the other. In this way the defendants would as effectually avail themselves of the reputation of the original manufacturer, who has spent years of his time, and large sums of money to establish it, to the great injury of such original maker, as if he had adopted the name, and more conspicuous features of the trade mark, and sold his own compound to the public in the name, and as the compound, of the said first manufacturer. The provision of the statute last cited seems designed to prevent one man from, in any form, availing himself of, or trading upon, the dearly bought reputation of another’s wares. It seeks to secure to the party establishing by his labor, money and personal energy, "a reputation for his manufactures, the exclusive benefit of such reputation. It does not prevent, or attempt to prevent, any party from making or vending in his own way, any article in which no other has an exclusive right of property; but it does prohibit him from availing himself of the reputation established by another by using any peculiar name, letters, marks, device, figures, or other trade mark or name adopted by such other party in the mode prescribed, and “ cut, stamped, cast or engraved upon, or in any manner attached to, or connected with, any article or covering or wrapping thereof, manufactured or sold by him, to designate it as an article of *81a peculiar kind, character or quality * * * for the purpose of representing any article * * * to be of the same kind, character or quality as that manufactured or sold by the person rightfully using such trade mark or name.” He may manufacture and sell the same article, adopt his own name, or device, give his own description of its virtues, and directions, for its use; but he is not to use the same name, mark, device, etc., adopted by another in the mode provided for the purpose of showing it to be, in fact, the same thing, and deriving profit, not from the article alone, but also from the reputation of the article, established by another. It was, doubtless, upon this view, that this statutory provision was adopted. The provision, perhaps, goes beyond the law, as it before stood, but thus the law is written. The case of Coffeen v. Brunton, 4 McLean, 516, however, only falls short of the statutory provision in the alleged element of falsehood. Mr. Justice McLean says: “In the case under consideration, in his label, the plaintiff calls his medicine the ‘ Chinese Liniment;’ the defendant calls his the ‘ Ohio Liniment;’ but from the body of the label and of the directions for the use of the medicines, it is clear that the language of the defendant is so assim,ilated to that of the plaintiff as to appear to be the same medicine, the alterations being only colorable. There would seem to be no doubt that the intention of Loree, who prepared the liniment sold by the defendant, as his agent, was to avail himself of the favorable reputation acquired by the ‘Chinese Liniment,’ in the sale of his; and by most persons it would be received as the same medicine. From the handbill published by Loree, the medicine sold by him is asserted to contain the qualities or ingredients of the ‘ Chinese Liniment,’ and some other ingredient which renders it more efficacious. In his • bill the plaintiff avers that this allegation is false, and especially in saying that the ‘Ohio Liniment ’ contains the ingredients of which the ‘ Chinese Liniment’ is composed. The case is considered as coming within the principles above cited, and an injunction is granted to enjoin the defendant from using *82the label or directions accompanying the liniment he sells, as aforesaid, or other labels or directions, or any advertisements or handbills representing the same words or sentences which are used by the complainant in his label and directions, and which tend to produce an impression on the purchaser and the public that the liniment sold by the defendant contains the same ingredients as the ‘ Chinese Liniment,’ and is, in effect, the same medicine.” (See also Burnet v. Phalon, 9 Bosw. 192; and Smith v. Woodruff, 48 Barb. 438, to the same effect; also, Newman v. Alvord, 49 Barb. 494, and Knott v. Morgan, 2 Keen, 213.)
So in this case, “ from the body of the label and directions for the use” of the compound, “it is clear that the language of the defendant is so assimilated to that of the plaintiff as to appear to be the same ” compound. Can there be any doubt that the verbatim copy of the entire label of plaintiff, except the heading, the name of the maker and place of manufacture, and adopting it as the label of the defendant, was done for the purpose of inducing the public to believe that the defendants’ compound was precisely the same thing as, and possessed the identical properties of, the compound manufactured and sold by the plaintiffs, and for the purpose of availing themselves of the reputation established by the plaintiffs ? Or that the desired impression would be made, and the contemplated results to a greater or less extent be attained ? Admitting the truth of the matters stated in the label, it is manifest that .the two compounds are substantially the same, and in all respects serve the same purpose, and the exact copy of the entire body of plaintiffs’ label, showing the properties and mode of use, very strongly indicate a purpose to represent to the public that the two compounds were of the “same kind, character or quality.” As to this part of the label I think it within the statutory provision, and being so, section eleven authorizes the Court to enjoin its use. It is said, however, that the defendants are entitled to make and vend their compound, and if so, they are entitled to describe its properties and give directions for its use; that the language of the label is as applicable to their compound as to the plaintiffs’. This may *83be so. But the poverty of the English language is not so abject that it is necessary for them to copy, or palpably imitate, the label of the plaintiffs in order to accomplish all their lawful purposes. The ordinary words of the language are open to the use of all. It is only their peculiar arrangement and combination, with reference to a particular subject matter, that they are prohibited from copying or imitating, or using for an unlawful purpose. Other language, or other combinations or arrangements, may be employed to indicate the purpose for which their compound may be used, and the mode of use, without suggesting an identity with plaintiffs’ compound. They are only prohibited from copying or imitating the plaintiffs’ label for the purpose of representing their compound as being the same thing, or something of the “ same land, character or quality ” as the plaintiffs\ If they can copy or imitate the plaintiffs’ arrangement of the language of the label so as to make it palpable that their compound is the same thing, of the identical kind, character, or quality, then the provision of the statute under consideration is nugatory. There may be instances where the directions are brief in which it would be difficult to avoid some similarity; but the question is, whether the words are used in good faith without reference to any other use of the same or similar words, or whether there is a willful design to imitate for the purpose of availing oneself of the reputation established by another; and, in this case, the latter purpose is palpably manifest in the portion of the label now under consideration.
Upon the pleadings a proper case for retaining the injunction, in part at least, appears without considering the affidavit filed in response to the answer. I do not think all the equities of the complaint were denied by the answer. The manufacture and sale of the compound enveloped with the label copied bodily, except the heading, name of maker and place of manufacture, is admitted. I think, with Mr. Upton, the better doctrine to be, that “whenever upon the face of a label, or trade mark, it appears to have been the manifest design to effect a similitude with an original trade mark so *84that deception may result, and the goods of the imitator be, thereby, sold as and for those of the true owner of the trade mark, whether such deception might or might not be avoided by the exercise of ordinary attention and prudence, an injunction should issue.” (Upton on Trade Marks, 222, 227,183.) And if the statutory provision under consideration may be regarded as extending the protection of the law to a ease not before embraced within the rule, the same principle must apply, when upon the face of the label it appears to have been a manifest design of the imitator to represent his compound to be of the “same kind, character, or quality” as that of the owner of the trade mark copied or imitated.
The injunction is, however, too broad. It might possibly be construed, though probably not so intended, as restraining defendants from selling their compound. This is not admissible. They should, in my opinion, be restrained from selling the compound while bearing the defendants’ label in its present form, or any other label having upon it the plaintiffs’ trade mark, or any substantial portion of it, or any similar trade mark, or similar portion thereof. And they should be restrained from using in any way the defendants’ label in its present form, or any label having upon it the plaintiffs’ trade mark, or any portion of plaintiffs’ trade mark, or that portion of plaintiffs’ label copied into defendants’ label. The defendants, however, should not be restrained from using the heading found in their label, or the name adopted by them, or the portion showing where, and by whom, their compound is manufactured, either alone or upon some other label devised by them, which shall not be an infringement upon, or imitation of, plaintiffs’ trade mark, or label.