Stonebraker v. Stonebraker

Brent, J., delivered the opinion of the Court. These appeals are brought before us upon a record of unusual size, which we have examined with a great deal of care and patience. The proof upon both sides has been very elaborate, and the case rests almost entirely upon questions of fact. As was said by Lord Lasígdale, in the case of Croft vs. Day, “what is proper to be done in cases of this kind must more or loss depend upon the circumstances which attend them.” ²⁶⁸ The bill asks for an injunction to prohibit the appellants from using the trade-marks of the appellee, and for an account.

The law of trade-marks, as applicable to this case, may be very briefly stated; While a party has the right to manufacture and sell any article he may please, not protected by letters patent granted to another, he has no right to use the trade-marks or names previously adopted and used by another trader, and induce thereby the public to believe the articles sold are another’s manufacture. Trade-marks are property, and as such the title to them will receive the protection of the Courts. If used by another, rvithout the authority or sanction of the owner, he will be restrained by injunction, and that even where it does not appear there was any fraudulent intent in their use. He will also be held to account for the profits derived from the unauthorized use of such trade-marks.

Croft vs. Day, 7 Beav., 89; Farina vs. Silverlock, 39 Eng. L. & Eq., 516; Millington vs. Fox, 3 My. & Cr., 338; Upton on Trade-Marks, 233, 234; Kerr on Injunctions, 489. We are relieved from the necessity of reviewing at length the facts and circumstances of this case, and we omit embodying them here because of the unusual space which would be required to set them out. They are so well considered and stated in the opinion of the Judge below, that we cannot better express our own views than by adopting, as we do, what he has said in reference to them.

We are fully satisfied, from all the proof, that the trade-marks and certificates in question belong to Henry Stonebraker, and that they have been improperly, and without authority or excuse, appropriated and used by the appellants, either by themselves or through their contrivance. That there is some difference in those used by the appellants, there is no doubt. But the change is of such a character as to indicate an evident purpose to deceive. Nobody can look at the two — the genuine and the imitation— without being satisfied that the genuine have been so altered, and so craftily used and employed, as to be well calculated to ²⁶⁹ produce, upon the public mind, the impression that the medicines and preparations sold by the appellants are the medicines and preparations of the