Page:Federal Reporter, 1st Series, Volume 1.djvu/39

 SAWYEB V. HORN. 31 �of the surface can be seen at one time, it becomes a matter of painstaking comparison to detect the differences. �The proof and the exhibits also show that these cylindrical boxes are packed by Sawyer by putting four dozen of them into a square, green, paper box just deep enough to contain them when standing upright, and when the lid is taken off nothing is seen of the cylindrical boxes, as they pack very close to each other, but the red tops, and the appearance is that of an almost solid, square mass of red sealing-wax. �And the proof and exhibits show that the respondent packs his cylindrical boxes in precisely the same way, presenting precisely the same appearance. These large boxes of Horn's being of the same color, and having on them labels very sim- ilar in designs and color to those of the complainant. �We are satisfied, from an inspection of the exhibits, that the general similarity between the goods of the complainant and respondent in ail these respects could not have resulted from accident, but must have been the resuit of intention, and that the general resemblance is so great as to lead to confusion ; and that a purchaser who had been in the habit of getting Sawyer's goods would bave to exercise unusual and peculiar care not to take the goods of Horn if they were offered to him. �And, as matter of fact, the depositions of a large number of persons who themselves use the blue for washing purposes in Baltimore were produced, who testified that they knew of Sawyer's blue only by the appearance of the box, and, having been in the habit of using Sawyer's blue, and expecting to get it, had taken Horn's blue when olïered them by retail dealers, supposing it was what they had been in the habit of using, knowing it only by the red top and blue box. �Being satisfied that these are the facts as proved by the complainant, we are now to consider the law applicable to them, and what is the remedy, if any, to which the com- plainant is entitled. �As to the simple question of trade-mark, we think the respondent is sustained in the position taken by him. The red top being, as to its use, a covering for the perforations in the metal top, and as to its color and material one of the ��� �