Brown Chemical Company v. Meyer

The answer admitted most of the allegations of the bill so far as they related to the preparation and sale of Brown's iron bitters, denied any fraudulent intent with repect to defendants' own label, and averred that in the summer of 1881 one E. L. Brown, in connection with one C. J. Lincoln, commenced putting up and selling Brown's iron tonic at Little Rock, Ark., as a wholly distinct preparation from Brown's iron bitters, and with no intention or purpose of imitating plaintiff's preparation, which at that time had not been advertised or sold to any great extent; that subsequently Brown sold out his interest in said preparation to Lincoln, who has since that time been putting up said medicine, and offering it to the public in cartons and bottles wholly different in size, color, and appearance from plaintiff's bottles, and with labels attached to the bottles wholly different in size, color, appearance, and details from plaintiff's labels, and inclosed in wrappers very different from the cartons of Brown's iron bitters, so that the public could not be misled or the plaintiff injured.

The case as made by the respective parties did not differ materially from their pleadings.

In explanation of the manner in which defendants' preparation originated, Brown swore that from August, 1869, to May 1, 1881, he was traveling salesman for a Louisville wholesale drug-house, and during that time traveled extensively in the south-west, and became generally known to the trade. In May, 1881, he formed a partnership with C. J. Lincoln, of Little Rock, which was dissolved in December, 1883. The firm name was part of the time C. J. Lincoln, and part of the time Lincoln & Brown. Brown did not personally go to Little Rock until December, 1881, when, following out a preconceived notion, he instructed the chemist of the firm to prepare a formula, and they devised a label and began to advertise the preparation through the newspapers and traveling salesmen. They sold some at retail in 1881, of which no record was kept. In the spring of 1882 they began to make sales to the trade. It does not appear the they knew of Brown's iron bitters, or that they had seen it until after they had determined upon their own remedy and its label. The opinion of the circuit court dismissing the bill is reported in 31 Fed. Rep. 453.

Rowland Cox, for appellant.

J. E. McKeighan, for appellees.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.