Page:Federal Reporter, 1st Series, Volume 8.djvu/43

 PEFPBB V. LABBOT. 29. �Peppeb i). Labrot and another.* �{Circuit Cowrt, D. Kentucky. July, 1881.). �1. Tkade-Mark — "Old Oscab Pbppbr Disthlery " ^ — DESOBiPTrvB of Plaob op Manufaoxubi!— Sale op Pbemisbs— Right of Purchaseb to Tradb- Mark. �The complainant, in 1874, was the owner by inheritance, of a tract of landon which his father, during his life-time, for many years had carried on a distillery, manufacturing whisky, which, from the name of the distiller, became kaown as " Old Crow Whisky," and the distillery as Oscar Pepper's Old Crow Dis- tillery. The complainant erected a new distillery and manufactured whisky, brauding on the heads of the barrels " Old Oscar Pepper Distillery ; Hahdr made Siour Mash ; James E. Pepper, Proprietor, Woodford County, Ky.," and used the same as a trade-mark in circulars, bill-heads, letter-heads, etc. Sub- sequently the complainant became bankrupt, and his distillery premises, build- ings, machinery, etc., were sold by his assignee under the name of the "Old Oscar Pepper Distillery," and became the property of the defendants, who operated the same by the manufacture of whisky, using the trade-mark adopted by the complainant, substituting their own names as proprietors. A bill was flled by complainant to enjoin the use of the trade-mark, the defendants filing a cross-bill asking to be protected in their claim to its exclusive use. �Held, (1) that the trade-mark was a description of the place of manufacture, and did not designate, either expressly or by association, the Personal origiu of the product. �(2) That the complainant, having ceased to be the owner of the distillery and proposing to use the name on whisky to be manufactured elsewhere, had no right to the exclusive use of the trade-mark as against the defendants, who could use it as a truthful description of their own production. �(3) That the complainant had no right to use it at all, because to do so would be to deceive and mislead the public by a false representation in respect to the place of the manufacture of his goods. �(4) That the defendants, by virtue of their ownership of the Old Oscar Pep- per Distillery, succeeded to the exclusive right to use that name for their prem- ises and place of manufacture, and to brandit on the packages of their mer^ chandise for the purpose of truly indicating it as a product of a distillery jvell known by that name. �In Equity. Trade-mark. Bill for injunction and account, and cross-bill for injunction. Final hearing upon pleadings and proof s. Barrett e Brown and John Marshall, for complainant. �1. Complainant's trade-mark embodied his family name, and was therefore peculiarly appropriate. See Ainsworth v. Walmesly, 44 L. J. 252. The right to use the name passed from father to son as apersonal right, not as a ehattel real. See Dixon Cruoible Co. v. Guggenheim, Cox's Trade-mark Cas. 577. �2. Did the trade-mark pass to the assignee in bankruptcy and from him to defendants by their purchasei A general assignment under state laws does not carry a trade-mark. Bradley v. Norton, 33 Conn. 157. Vendee in bank- ruptcy acquires no right as against bankrupt to a trade-mark which he used to designate his own preparations. Hembold v. Eembold Co. 53 How. Pr. 453. �*Ileported bj 1. C. Harper, Esq., of the Cincinnati bar. ��� �