Gruber Almanack Co. v. Swingley

Briscoe, J., delivered the opinion of the Court. On the 9th of September, 1905, the appellants, co-partners, trading as the Gruber Almanack Company, filed a bill in the Circuit Court for Washington County, for an injunction to restrain and prohibit the appellee from publishing, circulating or selling an almanack designated as “J. and C. Gruber’s Hagerstown Town and Country Almanack for the year 1906,” and also from publishing or circulating, or causing to be published or circulated “any other almanack in.colorable imitation of the appellant’s almanack and calculated to deceive and impose upon the public and to create in their minds the belief that such almanack is really and truly the appellant’s almanack.” Upon the bill and exhibits, a preliminary injunction was granted' and a demurrer to the bill was subsequently interposed by the appellee. The demurrer was sustained by the Court below, and the injunction as granted was dissolved. ³⁷⁴ And from orders of Court sustaining the demurrer and dissolving the injunction, this appeal has been taken. The allegations of the bill and the relief sought are based upon the statement that the appellee is publishing and selling an almanac in fraudulent imitation of the appellant’s almanack.

The ground of the demurrer being that the plaintiffs have not stated in their bill such a case as entitled them to any relief in equity, it will be necessary for us to consider the principal allegations of the bill upon which the relief is asked. The bill alleges thaRone John Gruber, the ancestor of all the plaintiffs (except Wilfred. H. McCardell), began in or about the year 1835, to print and publish a certain publication to which he gave the name of “J. Gruber’s Hagers-Town Town and Country Almanack,” and that for the purpose of distinguishing this almanack from other publications he adopted and made use of certain devices, emblems, representations, marks, and pictures which he combined in a manner entirely new and original, and that these devices, emblems, marks and pictures are the same as those shown on the front outside cover and the back outside cover of the plaintiff’s almanac; that they were the means by which the plaintiff’s almanac w,as known and distinguished by the trade and acquired its good will, and that this almanac has been published by Gruber and his family from the year 1835 to the present time. The bill also charges that a copyright of each and every edition of the almanack has been entered in the name of “J. Gruber” for the use and benefit of the members of the family and that in every issue and publication the name of “J. Gruber” has been used in the same manner as by Gruber himself, in his lifetime, that the name “J. Gruber,” in connection with the emblems, devices, pictures, etc., are of great value in the publication of the almanack, and are their sole and exclusive property.

The bill then avers that the defendant with a view and intent to deceive and mislead the public and to likewise injure and defraud them, is engaged in publishing and selling an ah ³⁷⁵ manack for the year 1906, in the manner and form, size and style substantially like and uniform with the one published by them; that the fraudulent simulation is so substantial an imitation and so similar to the appellant’s almanack as to impose upon the public and to induce them to purchase the false and spurious one for the appellants’ almanack to their damage and injury. It will thus appear from the foregoing recitals, as set out in the bill,