Page:Federal Reporter, 1st Series, Volume 10.djvu/850

 838 FEDERAL REPORTER. �HosTETTER and another v. Adams and anotlier.* �{Circuit Court, S. D. Neio York February 18, 1882.) �1. Labels — " iiostetter's Stomach Bitters" — Infeingement. �The label and metliod of preparation for market of " Hostetter's Celebrated Stomach Bitters" is infringed by that adopted for " Clayton & Russell's Cele- brated Stomach Bitters," inasmuch as the latter is plainly copied from the former by design, and its general effect is such as to deceive an ordinary ob- server having no cause to use more than ordinary caution. �A. H. Clarke, W. W. Goodrich, and J. Watson, for plaintiffs. �W. H. Arnoux and A. Dutcher, for defendants. �BLATCHroED, C. J. The bill alleges that the plaintiffs are, and for .27 years or more have been, partners doing business as Hostetter & Smith, and during that time engaged in making and selling a medi- cine known as "Hostetter's Celebrated Stomach Bitters;" that they have the sole ownership of the good-will, labels, or trade-marks of said bitters ; that said bitters have acquired a reputation as a safe and valuable medieine ; that, in order to designate said bitters as of their own compounding and asgenuine, and to prevent fraud by hav- ing spurious bitters sold as and for the genuine, they from the begin- ning devised certain labels, tokens, or trade-marks, and a certain manner of putting up said bitters, placing them upon the market in a style different from that in use by manufacturers or dealers in like articles, and that they have adhered to said style up to the present time ; that said bitters are placed by them in square bottles, of uniform size, known as No. 6, containing about one and a half pints, and having blown therein the name "Dr. J. Hostetter's Stomach Bitters," and upon these bottles they cause to be pasted labels or trade-marks, and the bottles then have revenue stamps put on them, and are packed in square boxes, each box containing a dozen bottles, and, so boxed, are sold to dealers; that the defendants are making and sell- ing a spurious and inferior article of bitters, prepared in imitation of, and intended to be sold as and for, the genuine Hostetter's Cele- brated Stomach Bitters of the plaintiffs' own manufacture, and cal- culated to deceive the public and consumers, and to enable the de- fendant to reap the profits of the reputation and sale of them; that, with like intent, the defendants have printed a false label or trade- mark in imitation of, and closely resembling, one of the plaintiffs' labels, said false label being well calculated to mislead and deceive �*Iieported by S. Nelson White, Esq., of the New York bar. ��� �