Page:Federal Reporter, 1st Series, Volume 1.djvu/698

 690 FSDEBÀli 'SEFOBTEB. �■was any resemblance between the trade-marks, or any attempt at imitation ; or that respondent had any intention to usurp complainant's reputation, or deceive the public ; or that the public were deceived. Both parties filed affidavits in support of the facts respectively alleged in the bill and answer. �William Henry Brotvne and George Harding, for complain- ant. �Field, Dorsheimer, Bacon e Deyo, for respondent. �BuTLEE, J, It would be unwise to say more at this time than is necessary to explain the action of the court in dispos- ing of the interlocutory motion now before it. The plaintiff's exclusive right to the trade-mark, as a designation of his smoking tobacco, is not doubted. �The defence rests upon a deniai— ^rsi, that the defendant has used the trade-mark ; and, second, that he has nsed it as a designation of "smoking tobacco." The second branch may, most conveniently, be noticed first. While the revenue laws, for purposes of taxation, distinguished between smoking tobacco and cigarettes, there is, we believe, no substantial difference. Cigarettes consists of smoking tobacco, similar in ail material respects to that used in pipes. The circumstance that a longer "eut" than that commonly used in pipes is moat con- venient for cigarettes is'not important, nor that the tobacco is smoked in paper instead of pipes. It may ail be used for either purpose, and is ail embraced in the term "smoking tobacco." �We do not believe the public or the trade draw such a dis- tinction as the defendant sets up. We have not overlooked the statements contained in his affidavits, but the method pursued in obtaining this testimony, generally, does not re- eommend it to our confidence. The affidavits seem to have been prepared without seeing the witnesses, and sent over the country to be signed by tbose who might be found -willing to sign them. They are, generally, similar in language, and printed. This method of obtaining testimony is not worthy of encouragement. If the public and trade draîW such a dis- tinction, and, therefore, do not suppose the defendant's cigar- ettes to be made of the plaintiff's tobacco, (and the defendant ��� �