Page:Federal Reporter, 1st Series, Volume 1.djvu/40

 32 FEDERAL REPORTBB. �most common of ail the cements used to close and seal the mouths of jars, bottles, cans and similar packages, and there being impressed on it no mark or design, it cannot, we think, be said to be a trade-mark, and cannot be exclusively appropriated by the complainant ; nor can the form of his box, it having been decided not to be a patentable contrivance, be monopolized by him ; nor can the color of the label, nor the allocation of words thereon, nor the type, be exclusively appropriated. The word "chrystal," as applied to bhiing, may be his trade-mark if he first so applied it, and ihefac simile of his antograph signature, but these are ail; so that it does not appear, as to anything which the complainant can call teclinically a trade-mark, that the respondent bas been guilty of piracy or imitation. �But we do find that the respondent bas been guilty of im- proper and inequitable conduct, to the injury of the com- plainant, in having designedly so put up, labeled and packed his goods that purchasers, for whose use they are intended, are misled and deceived, and do get Horn's blue, when they desire and suppose they are getting Sawyer's. And that Saw- yer, the complainant, having, after many years of manufac- ture, established a market and demand for his goods, as known by their peouliar and distinctive appearance, which he was the first to adopt, is now deprived of prolits which he would otherwise obtain, by the fact that, after he had so established a reputa- tion and demand for his goods, the defendant, with the in- tention of getting the benelit of that reputation and demand, has put his goods on the market prepared with such close imitation of the complainant's that they are mistaken for his. �The respondent, while he denied (and there is no evidence whatever to the contrary) that he ever represented or author- ized any one to represent that his goods were Sawyer's, does, in his testimony, admit that he put up his goods with the appearance they now have because it was "fashionable," and because he found that a blue box with a red top made them more salable; and as he sells his goods to the grocers at 50 cents for four dozen, while Sawyer has been accustomed to sell his for 85 cents, it is easy to see that the grocers pre- ��� �