Page:Federal Reporter, 1st Series, Volume 1.djvu/35

 gAWYBR V. HOBN. 37 �That the red top was producedJ)y the application of Vene- tian red, for the purpose of stopping the perforations in the top of the package until required to be opened for use, and that the claim of the red top as a trade-mark was an after- thought of the complainant, suggested as a means of con- tinuing his monopoly after his patent was annuUed. That it was not a proper subject of registration as a trade-mark, had never been used or applied as described in the certificate of registration, and was but the ordinary use of a cheap and well known red material as a cement to close the perforations of the box, and when so applied became part of the box itself, and not in any sense a trade-mark. �Eespondent f urther claims that the pictures used by him on the lids of his larger packing boxes were simply pictures free to be used by any one, and alleges that the form of package, labels and other marks olaimed by complainant are not orig- inal or peculiar, but had been long used by many persons in the same trade. �The respondent admits that he does put up and sell a bluing in boxes having a resemblance in form to those sold by the complainant, but denies that he bas done so fraudulently, or that he bas ever done so in imitation of the complainant'g bluing, or ever done anything not warranted by a fair compe- tition in business, and denies that he bas ever offered to sell any of bis goods as and for the goods of the complainant, or sold any goods bearing any marks belonging exclusively to complainant, or any false representations thereon calculated to create confusion, and cause his goods to be purchased as and for the goods of the complainant. �He admits that he sells his goods cheaper than the com- plainant, but alleges that he gives as good an article for less money. �The case now cornes on for final bearing, and we bave been greatly assisted by the careful and thorough manner in which the facts bave been presented, and by the able arguments of counsel, and the very numerous exhibits which bave been brought to our attention illustrating and explaining the facts ��� �