Page:Federal Reporter, 1st Series, Volume 4.djvu/543

 JOSEPH DIXON OBUOIBIiB 00. V. BBNHÀH. 529 �1877, put «p his article in wrappers and labels almost identi- cal in appearance, arrangement, style of printing, and lan- guage with the plaintiff's wrappers and labels, except the necessary changes of name and address. It is net denied that the two wrappers and labels are substantially identical. The question in the case is as to priority of use. The de- fendant contends that he has continuously used substantially the same form and style since 1853, and that the adoption of this style by Mr. Dixon was after that date. �The plaintiff's theoryis that it has satisfactorily shown that Dixon eommenced the use of this trade-mark at least as early as 18e7. The defendant's theory is that he eommenced the manufacture of stove polish in the year 1844, and that in 1853, and before Dixon's use of the wrapper, he began to put up his article in elongated cubes, in a blue wrapper, with a yellow label, under the name of the Straitsville East India Lead Works ; that, with the exception of the years between 1863 and 1867, when he was engaged in other business, he continued the use of these wrappers and labels until 1876 or 1877, when he changed to the present style, and adopted the name of the New England Lead Works, and inserted his own name as proprietor. �Mr. Benham has kept a conntry store in Straitsville, a vil- lage in the town of Naugatuck, and has had from $500 to $1,000 invested in the etove-polish business. It is manifest that the bulk of the product having the "East India" label was sold to peddlers, as this article was not known to the trade. He testifies, in answer to the question "Who com- posed the printed matter on your first label on the cube ?" "I am not certain ; I think Giles (Josiah Giles, a printer in Hartford) got the label up. I left it with him to get the label np. It was either him or a man named Hurlburt." �He further testifies, in substance, that this wrapper was used till 1876 or 1877, when he changed to the New England Lead Works wrapper. The printing was done by the Water- bury Printing Company. In answer to the question, "Did you send them' a copy from which you instructed them to print a certain number of labels?" he said: "I do not know �v.4.no.6— 34 ����