Fonovisa, Inc. v. Cherry Auction, Inc. Richard Pilegard, W.D. Mitchell, Margaret Mitchell

<p>In Equity. Suit for unfair competition in trade.</p> <p>This is a suit by the Bissell Chilled Plow Works, an Indiana corporation, engaged in the business of selling plows and wood pulp of its own manufacture at South Bend, Ind., against the T. M. Bissell Plow Company, a Michigan corporation, engaged in the business of selling plows of its own manufacture at Eaton Rapids, Mich., and certain officers thereof. The relief sought is an injunction restraining defendants from using the proper name “Bissell” as part of the name of the defendant corporation, or upon the plows sold by it, and a recovery of damages for past use thereof in such connection. The question to be determined is whether the. facts shown by the evidence in the record are such as to entitle complainant to all or either part of this relief.</p> <p>Complainant was incorporated and organized January 11, 1881. Its name at first, and until June 2, 1891, was “The South Bend Pulp Company.” On that date it wás changed to “The Bissell Chilled Plow Works,” its present name, by the judgment of the circuit court of St. Joseph county, Ind., of which South Bend is the county seat, in proceedings had in pursuance of the statutes of Indiana, begun February 21, 1891. Its business has always been as before stated, but the principal part thereof for from some time before the change in name, if not always, has been the sale of plows, and, if it still continues to sell wood pulp, it is only to a small extent. These two departments of its business have always been kept separate and distinct. Before the change in corporate name, it had a trade-name for its plow department, to wit, “The Bissell Chilled Plow Works,” the same which so became its corporate name. This was the trade-name of that department before that change, from the very beginning. There was nothing done by it in connection therewith that was not done in that name. All correspondence, bill heads, letter heads, price lists, advertisements, and contracts in rela

<p>These two suits are brought to enjoin defendant from using two alleged trade marks of the plaintiff.</p> <p>The plaintiff was incorporated in 1886, and has ever since been manufacturing in the township of Kirkland, N. Y., near the village of Clinton, in the said town, a red pigment for coloring mortar, brick, tile and ’all clay products. It makes such pigment out of iron ore which it mines in the same place. The process of manufacture is to pass the ore through a gang of crushing, rolling and grinding machines, until it finally comes out a fine powder. While the ore is going through the grinding machines, another material, which is a trade secret and not disclosed, is added. The same or a similar product from such iron ore mined in the said section, was manufactured and sold before the plaintiff engaged in such manufacture. Many persons are engaged in such manufacture. Such iron ore is found in a district near the said village of Clinton. It is a hematite, or blood red ore, as that word signifies. It is peculiar to that district, and some others in this country, and is geologically known as Clinton hematite, or Clinton ore, wherever found, having been so named for De Witt Clinton. In 1887 the plaintiff adopted a label for its said product, consisting of the perspective representation of a barrel with the head toward the observer, showing the lines of the staves and of the slats ¡of the head, and bearing the name or brand, “ Clinton Hematite Red ”, printed in the centre of the said barrel head, each word being under the preceding one. The label is reddish in color, except that the letters and lines, and part of the sides of the barrel, ¡are white. This label is pasted on each box or barrel in which the product is sold by the plaintiff, and the plaintiff has identified its product therewith, and created a large and valuable trade thereunder. In June, 1897, the defendant company was incorporated, and it has ever since been manufacturing and selling a pigment of the