Page:The Green Bag (1889–1914), Volume 17.pdf/75

 THE GREEN BAG The cases are those of Royal Baking Powder Company v. Royal, at page 337, and Wyckoff, Seamans & Benedict v. Howe Scale Company, at page 348, of the volume mentioned In the first case it appeared that the Royal Baking Pow der Company had for many years been making and selling a baking powder under the name "Royal," arbitrarily used to designate origin, and toy which name its product was called for by purchasers and became distinctively known to the purchaser rather than by the appearance of the packages. Defendant, whose surname was "Royal," commenced the manufacture and sale of a baking powder which he put up in cans simi lar in size and shape to complainant's and having a label similar in color and general appearance bearing his name in large letters. He also ad vertised the same as the "New Royal." Having been enjoined from such advertising and from imi tating complainant's labels, he changed the color of the label from red to blue on which was printed the name "Maxim Baking Powder," but still hav ing his name in prominent letters on the front of the cans. There was evidence that his baking powder in some cases had been sold as that of complainant and that retailers had given it to customers calling for Royal Baking Powder with out explaining that it was the product of com plainant. Under these facts it was decided that complainant had appropriated the word Royal to indicate baking powder made by it and that whether or not it had a technical trade-mark in the word it had used it until it came to have a secondary signification which was entitled to pro tection. Defendant, however, had a right to use his own name in connection with his business, even though he might thereby interfere with or injure the business of another. But it was held that all the facts showed a purpose on the part of de fendant to so use his name as to sell his product as that of complainant, and that while he would not be enjoined from using his name he would be enjoined from displaying it on the front label of his cans, and was further determined that the labels used by him (facsimiles of which are re produced in the Federal Reporter) were such as to mislead the public by the fact that the name Royal was so conspicuously printed and the gen eral character of the label such as to be misleading. In the second case the complainant had ac quired from the corporation E. Remington & Sons, the original manufacturer of Remington type writers, its typewriter business and good-will with the right to use the name " Remington." After the machines had become widely known by that •name, two sons of the former president of the Remington Company, also named Remington, ac

quired an interest in a typewriter invented by one Sholes, and a corporation was formed by the brothers to manufacture the same under the name of the Remington-Sholes Typewriter Company, the machines being marked "Remington-Sholes" and afterwards "Rem-Sho." It was held here that the right of the Remingtons to use their own name in their business did not extend to the right to use it in the corporate name or in marking the product of the corporation where, as must have been known and intended, it would produce con fusion through which some trade would be di verted from complainant so that the company would be enjoined from so using the name. It was, however, held that the arbitrary name " RemSho" was not sufficiently like "Remington" to be of itself a cause of confusion TRIAL.

(WHEN TRIAL OF A CAUSE COMMENCES.) SUPREME COURT OF NEW YORK. In Goodkind v. Metropolitan St. Ry. Co., 89 New York Supplement 703, the question arose on taxation of costs as to when a trial actually com menced. The jury was examined by the attorney for plaintiff and accepted on the a^d of May. Thereafter on the same day defendant's attorney commenced his examination of the jury, but in the midst thereof he asked for an adjournment until the next day, which was granted, the court stating that the case was to be considered on trial. To this no objection was made by either party, and in the New York Law Journal of the next day the case was noted as on trial on the previous day and unfinished. Under these cir cumstances the court considered it as clear that the trial of the case was commenced on the 23d. WILLS.

(TIME WHEN WILL SPEAKS.) SUPREME COURT OP NEW YORK. In Waldo v. Hayes, 89 New York Supplement 69, the court decides that where the will of a testatrix gave her " diamond brooch" to one per son and her "jewelry not otherwise disposed of" to another, and the brooch which testatrix had when the will was executed was subsequently dis posed of, but at her death she had another, this brooch passed to the one to whom the brooch was given in the will and did not pass to the person to whom testatrix's jewelry "not otherwise disposed of'.' was bequeathed, on the ground that the will speaks from the time of the death of the testatrix. In support of this holding the court cites Brundage v. Brundage, 60 New York 544; Van Vechten v. Van Vechten, 8 Paige 104; Tifft v. Porter, 8 New York 516; Castle v. Fox, Law Reports, n Equity 551.