University of Chicago. Divinity School.

The American law register, Volume 13 online

. (page 20 of 100)
Online LibraryUniversity of Chicago. Divinity SchoolThe American law register, Volume 13 → online text (page 20 of 100)
Font size
QR-code for this ebook

in some measure the public, of all future advantage to be derived
from their superior skill and industry.

Policy as well as the dictates of reas(m and justice require the

The fallacy in the argument of the counsel for the respondent
wiems to be this : — They assume that the petitioners' trade-mark
i^ identical with a trade-mark adopted and used by the several
partnerships and cbrporations preceding them. But it is not a
ease of a continuing trade-mark used by successive partnerships
and corporations. It is rather a question relating to the right of
parties to the use of their own name as a component part of
several trade-marks* used respectively by partnerships and corpora-
tions with which they are connected.

Viewed in that light, we see no diflSculty in allowing these
parties to use their own names freely, except as their right to do
10 is limited by their obligations to the Waterbury company.

That corporation only acquired the right from two of the
brothers to use the name *' Rogers and Brothers" and " Rogers &
Bro.'* That right continues, and is entitled to protection as
igainst the parties from whom it was acquired and others claim-
ing imder them.

Bnt they do not complain ; on the contrary the circumstances
we Mch that both they and the petitioners are satisfied, and we do
not see that the respondent has any cause of complaint, or right to
deri?e any advantage from the fact, that the trade-marks of the
tvo parties resemble each other.

We are satisfied, therefore, that the Messrs. Rogers had as

Digitized by VjOOQIC


against the respondent a right to the use of thoir own names, ami
might, under certain legal restrictions,* impart that right to the

It is not denied that the parties have attempted to do so, and
have in fact done so by their several contracts, so far as it may be
lawfully done.

And that brings us to the next objection interposed by the
respondent, which is that this has not been done lawfully, for the
reason that the name as used by the petitioners in their trade-mark
does not indicate the true origin of the goods, and that it untruth-
fully represents that the Rogers Brothers manufactured said

The principle of law underlying this objection is fully con cede<l,
and that is that courts of equity will not protect a trade-mark
which deceives the public. We do not suppose, however, that the
deception need be of such a character as to work a positive injury
to purchasers, nor on the other hand that every erroneous im-
pression which the public, or a portion of the public, may receive,
will be suflScient to destroy the vali<lity of the trade-mark.

The question, then, is whether in this case the representation is
of such a character as to defeat the petitioners' claim to protection.
The goods manufactured by the parties under their arrangement
were manufactured under the personal superintendence of the
Messrs. Rogers, or some of them, and were the product of their
skill, experience and judgment.

It is unnecessary to examine in detail all the evidence con-
tained in the report tending to prove this proposition. The
proposition itself is abundantly established. The first contract
between the parties provided that the goods should be of a given
standard and quality; that the Messrs. Rogers should direct as to
the manner of stamping the goods ; should approve the weight,
patterns, papers, boxes, labels, &c., and should devote their time
;inrl skill to the procuring of orders for the sale of said goods;
that Simeon S. Rogers should superintend the weighing of spoons
and forks before and after plating to determine whether they con-
tained the required quantity of silver, and should devote his time,
labor and skill in the business of cutting down, buffing, setting,
papering, boxing and labelling goods.

The contract in all these respects was complied with, and to
that extent the goods were manufactured according to the mind
and will of the Rogers Brothers.

Digitized by LjOOQ IC


It also appears that William Rogers superintended the alteration of
the petitioners' dies (of which about 1500 were in use), devised new
patterns, and to a great extent remodelled the mechanical depart-
ment of the petitioners' manufactory of spoons and forks, and had
the general supervision of that department until the fall of the
year 1865. He was then absent until March 1868, when he re-
turned and resumed, and continued the oversight and general
superintendence of that department as before, until in the winter
of 1870-71, when he became incapable of so doing by reason of

Since that time his son has performed to some extent the same
duties. Asa H. and Simeon S. Rogers also have been employed
most of the time in connection with this business. Now it dis-
tinctly appears that the goods placed upon the market under the
several contracts between these parties, were not only quite up to
the standard of the Rogers goods previously sold, but in some re-
spects were superior in quality and style. We have thus referred
to details sufficiently, perhaps, to show conclusively that the public
were in no sense defrauded by whatever representation the trade-
mark contained, and that such representation, so far as it indicated
that Rogers Brothers were the manufacturers of the goods in
question, was in an important sense true.

All that the public or the trade cared to know, was that the
goods were the production of their skill and experience. fact, as it seems t6 us, clearly appears. The further fact
that the petitioners furnished capital and machinery, employed and
paid laborers and sold the goods, is entitled to little weight, so far
as this question is concerned, although it shows that in another
sense the petitioners were the manufacturers of said goods.

We are satisfied that there is no such misrepresentation as the
cases contemplate, which hold that a trade-mark which states a
fabehood, is not entitled to protection. If this were not enough
to dispose of this objection, we might add that it does not clearly
appear that the trade-mark in fact represented, or caused any one
to believe, that Rogers Brothers were the manufacturers in any
other sense than that just considered, which wa?*, so far as we can
jadge, the same sense in which they had always been the manu-
facturers since 1853, Ever since then the name has been used in
rarious forms, and generally in such a manner as to denote a part-
uership, while they were in fact but stockholders in corporations.

Digitized by VjOOQ IC


Now if we may suppose that the public were familiar with the
history of this enterprise, and the various changes enumerated in
the report, we shall have no difficulty in supposing that when the
petitioners' trade-mark appeared, the name denoted what it had
previously, that the goods were manufactured by some company or
corporation with which Rogers Brothers were connected.

The other branch of this objection, that it did not indicate the
true origin of the goods, refers mainly to the misrepresentation
already considered.

In other respects it has no particular force. Like all other
symbols and devices used as trade-marks, its import was not at
first perhaps fully understood. The effect as well as the value of
a trade-mark, is the work of time and experience.

This probably was no exception to the rule. However this
may be, it seems to have been well understood at the date of this
petition, that goods bearing that stamp were manufactured by the

2. The next question is whether the respondent, by the manner
in which he carries on his business, interferes with and injures the
business of the petitioners. On this question there is little room
for doubt or argument. Under his present arrangement he com-
menced stamping goods " C. Rogers Bros. A 1," but since Febru-
ary 1872 he has stamped them " C. Rogers & Bros. A 1.'* The
committee finds that these stamps resemble the petitioners' trade-
mark to such a degree that they are calculated to deceive and do
deceive a class of purchasers, and that the respondent has sold
large quantities of goods upon the reputation of goods bearing the
stamp of the petitioners and of the Waterbury company. It is also
found that the respondent had full knowledge of the reputation of
the Rogers goods, and that he supposed that the resemblance of
his own to the petitioners' stamps would enable him more readily
to sell his goods in the markets of the country. The fact that he
supposed he bad a legal right to do so will exonerate him from any
intention to do his neighbor a legal wrong, but his mistake as to
his legal right does not lessen the injury to the petitioners. The
fact that careful buyers, who scrutinize trade-marks closely, are
not deceived does not materially affect the qut«tion. It only shows
that the injury is less, not that there is no injury. Another class
of purchasers, to whom large quantities have been sold, are de-

Digitized by LjOOQ IC


Such purchasers perhaps will have no reason to complain, as
they, rf they are injured by the deception, mast attribute the injury
to their own want of diligence.

But the petitioners stand on entirely different ground. No
amonnt of diligence on their part will guard against the injury.
An injanction is their only adequate remedy, and to that we think
they are entitled.

It only remains for us to consider the extent to which the remedy
should be applied. The prayer of the petition is that the respond-
ent may be enjoined from using the stamp 0. Rogers Bros. A 1,
or any stamp of which the word Rogers or the words "Rogers
Bros." shall form the whole or a part, and from selling goods so
stamped or stamped with any stamp so nearly resembling the peti-
tioners' stamp, " 1847, Rogers Bros. A 1," as is calculated to
deceive purchasers.

We think the petition should be granted so far as to restrain the
use of the stamp specified, and also to restrain the use of the words
"Rogers Bros."

But the use of the name Rogers ought not to be prohibited. We
cannot say that every use of that name will necessarily infringe
the petitioners* trade-mark. If it may be so used as not to in-
fringe, it would be manifestly unjust to forbid such use by the re-
spondent, inasmuch as his title to the mere name is as good appa-
rently as the petitioners*. Even if the use of the name should, in
«ome degree, increase the respondent's sales and thus, at lea^t
indirectly and remotely, itijure the petitioners, it is an injury to
which they must submit, unless there is such resemblance to the
petitioners* stamp as to induce purchasers to believe that they are
purchasing the petitioners' goods.

The use of a prominent name in a trade- mark will necessarily
give rise to some embarrassment of this character, and those so
using it must be presumed to take the risk. The respondent should
also be enjoined from selling goods bearing such stamps which were
manufactured since the service of the petition, or which may here-
after be manufactured. But goods then on hand or in process of
manufacture may be sold in such a manner as to do the petitioners
no substantial injury.

At all events the circumstances of the case are such that we are
not incli'tf»d to prohibit their sale absolutely.

The general prayer that the rc^spondents be enjoined from selling
Vol. XX n.—n

Digitized by VjOOQ iC


goods stamped with a stamp so nearly resembling the petitioners'
stamp that it is calculated to deceive, kcj is too vague and uncer-
tain to be of any practical benefit if granted.

The resemblance and deception are matters of fact to be deter-
mined in each case : Boardman v. Meriden Brit Co.y 86 Conn.

We advise the Superior Court to render judgnjient for the peti-
tioners to the extent indicated above.

Supreme Court of Iowa,

Common carriers of passen^^rs hare the legal right to make reasonable and
proper rules and regulations for the conduct and accommodation of all persons who
trarel by their conreyances.

Tlie sale of a ticket to a passenger is a contract to carrj such passenger accord-
ing to their rules and regulations.

They have no right howerer to make mles or regulations for their passengers,
based upon any distinction as to race or color.

A negro woman who purchases a first class dinner ticket on a Mississippi steam-
boat is entitled to sit at the same table as the other passengers.

This is a right secured to her by the laws of the state of Iowa, and the Con-
stitution of the United Sutes.

The object of the 14th amendment to the Constitution of the United States, was
to relieve citizens of African descent, from the effects of the prejudice theretofore
existing against them ; and to protect them in person and property from its spirit.

This was an action at law to recover damages sustained by
plaintiff for an assault and battery committed upon her, by the
officers of a steamboat used by defendant as a common carrier in
navigating the Mississippi river, while she was a passenger thereon,
and for forcibly and with violence removing her from the dinner-
table of said boat without cause and for no improper conduct on
her part.

The defence set up was, that plaintiff is a colored woman and
that there was a custom or a regulation of all boats of defendant,
well known to plaintiff, under which colored persons could not
receive state-rooms and first-class privileges and accommodations.
The other facts are stated in the opinion.

There was a trial by a jury and a verdict for plaintiff. A motion
in arrest of judgment and for a new trial, on the grounds that the
verdict was not sustained by the evidence and was in conflict with the

Digitized by VjOOQ IC



law, and for alleged errors in instructions given to the jury, was
overruled and judgment was rendered upon the verdict. Defend-
ant appealed to this court.

Howell ^ Rice, for appellant

MeOrarj/j Miller ^ MeCrary^ for appellee.

Beck, C. J. — I. The plaintiff, being in the city of Keokuk, went
upon the steamer " S. S. Merril," one of defendant's line of
packets navigating the Mississippi river, for the purpose of carry-
ing freight and passengers, to be transported to her home at the
city of Quincy, in the state of Illinois. She is a quadroon, being
partly of African descent, and was employed as the teacher of a
school for colored children in the city where she resided. She
applied at the offioe of the vessel for a ticket, and was given one
entitling her to transportation, but not to a state-room nor to
meals, such as those under the custom and regulations of de-
fendant's steamers are given to colored persons. This, after its
terms were explained to her, she returned to the clerk of the boat,
and its price was refunded to her.

She claimed the right to be transported as other first-class
passengers, and offered to 'pay accordingly. This being refused,
she, at the time, declined to accept a ticket on any other condi-
tions, and left the boat. She afterwards returned, and purchased
a ticket, containing llie conditions of the one she had refused to
accept, printed in red ink thereon in these words : — ^' The holder
of this ticket is entitled to meals at an assigned table and first-
cUss cot only — besides transportation." The following words
were written across the face of the ticket : — " This does not in-
clude meals."

Before the hour of dinner, she sent the chambermaid to pur-
chase a ticket for that meal, and one was brought her with the
words, " Colored girl," written thereon. Plaintiff applied to the
derk at his office to be informed of the meaning of the writing,
and was told that it was a ticket of the character sold to persons
of her color, and entitled her to dinner at a table on the guards of
the boat, and that, under the conditions of her ticket for transpor-
tation, she could be seated for meals in whatever place the clerk
saw proper to assign her. She returned the ticket to the clerk,
refusing to accept it with the conditions as explained, and its price
vas repaid to her. After this she requested a gentleman to buy

Digitized by VjOOQ IC


her a ticket for dinner, who bought her one, without any endorse-
ments or conditions. It does not appear that the oflScers of the
boat knew when this ticket was purchased, or for whom it was

When dinner was announced she seated herself at the ladies'
table, in the cabin, at a place designated for certain ladies travel-
ling on the boat ; this it does not appear she knew before seating
herself. She was then informed by one of the oflScers of the boat
that she must leave the table, that the seat she occupied was
reserved, and that her dinner would be, in a short time, ready for
her at the place designated by the clerk. The request was for
her to leave the table, and take her meal on the guard or in the
panfry, not to leave the reserved seat and take another. She
refused, and thereupon the captain of the boat was sent for, who
repeated the request, and. being denied compliance, he proceeded
by fbrce to remove her from the table and the cabin of the boat.

She resisted so that considerable violence was necessary to drag
her out of the cabin, and, in the struggle, the covering of the
table was torn off, and dishes broken, and the oflicer received a
slight injury.

The defendant's witnesses testify that she used abusive, threaten-
ing and coarse language during and after the struggle, but this
she denies. Certain it is, however, that by her spirited resistance
and her defiant words, as well as by her pertinacity in demanding
the recognition of her rights, and in vindicating them, she has
exhibited evidence of the Anglo-Saxon blood that flows in her

While we may consider that the evidence as to her words and
conduct does not tend to establish that female delicacy and timidity
so much praised, yet it does show an energy and firmness in defence
of her rights not altogether unworthy of admiration. But neither
womanly delicacy nor unwomanly courage has anything to do
with her legal rights and the remedies for their deprivation.

These are to be settled without regard to such personal traits of

The court gave the following instructions to the jury : —

'^ 1. The defendant, as a common carrier of passengers upon
the Mississippi river, had the power and legal right to make
reasonable and proper rules and regulations for the conduct and
accommodation of all persons who travel upon their boats.

Digitized by VjOOQ IC


" 2. The sale of a ticket to a passenger is a contract to carry
bim or her according to the reasonable regulations and usages of
the company, and the passenger, by the purchase of the ticket, is
presumed to contra<;t with reference to them.

" 3. The right of passengers to a passage on board of a steam-
boat is not an unlimited right, but is subject to such reasonable
rules and regulations as the proprietors may prescribe for- the due
tccommodation of passengers, and for the due arrangement of
their business.

" They have the further right to consult and provide for their
own interests in the management of their boats.

" 4. The duty of common carriers to carry passengers is im-
posed by law for the convenience of the community at large,*and
iiot of individuals, except so &r as they are component parts of a
community, and common carriers are not required, for the accom-
modation of particular individuals, to incommode the community
at large.

'* 5. The defendant, as common carrier of passengers,, had the
legal right, as I have already said to you, to adopt reasonable
roles and regulations concerning the convenience, comfort, and
J^afety of its passengers, such, for example, as admitting to the
lidies* cabins such gentlemen only as are accompanied by ladies,
seating parties or families travelling together at the same table or
adjacent to each other, the seating of gentlemen unaccompanied
by ladies in the gentlemen's cabin, and the like.

^* These and other like reasonable rules and regulations may be
adopted and enforced by the common carrier of passengers for

" But all persons unobjectionable in character and deportment,
who observe all reasonable rules and regulations of the common
carrier, who pay or offer to pay first*class fere, are entitled,
inrespective of race or color, to receive upon the boats of the com-
mon (»krrier first-class accommodations. If the plaintiff in this
suit was unobjectionable in character and deportment, and, but for
her color and blood, was entitled to first-class accommodations,
and paid, or offered to pay to the proper ofiicers of the boat, the
price charged for first-class accommodations, then I say to you,
and 50 charge, that the plaintiff was entitled to the same right and
privileges, while upon said boat, that other passengers upon the
same boat similarly circumstanced, of pure Anglo-Saxon origin,

Digitized by VjOOQ IC


were entitled to. And if plaintiff's rights to first-cluss accommo-
dations were denied her, simply because she has African or negro
blood in her veins, and if she, for this reason onlj, was forcibly
and violently removed from the table in the cabin of the boat, and
forcibly ejected therefrom, afler having paid or offered to pay the
nisual and fixed price for a meal at some one of the tables in the
cabin of the boat, then the coart charges you that the plaintiff is
entitled to recover in this action.

"6. If the plaintiff, upon entering the boat at the time in
question, voluntarily and knowingly purchased a passage-ticket
defining and limiting her rights as a passenger, then she was
bound by the special contract upon said ticket to the extent there
expressed. But if the contract upon this passage*ticket simply
related to transportation, and did not include meals, then plaintiff
was entitled to the rights and privileges of other cabin passengers
similarly situated, and of like character and deportment, except
so far as abridged and limited by the aforesaid ticket.

" 7. Taking for your guide what I have already said to you con-
cerning the right of the common carrier to adopt reasonable rules
and regulations for the comfort and convenience of passengers, if
you find that the plaintiff brought upon herself the injuries she
complains of, because of the violation of reasonable and proper
rules of the defendant, and if the officers of the boat, because of
the violation of reasonable rules and regulations of the boat by
plaintiff, and not simply because of her color, removed the plain-
tiff from the table when seated, and used only reasonable and
necessary force to remove her, then the defendant is not liable for
damage in this action.

^' 8. But the court charges you as a proposition of law, that the
rule contended for by counsel for defendant in this suit, viz., that
all persons of African descent taking passage on board defend-
ant's boats, shall, for this cause only, submit to the rule of the
company requiring such persons to take their meals in the pantry
or on the guards of the boat, is not a reasonable, but an unreasonable
rule, and must be disregarded by you in deciding this case under
the evidence, and the law as announced to you by the court.

"9. The words upon the passage-ticket * at an assigned table,'
cannot be construed by you in this case as giving the right to the
officers of the boat to set. a table for the plaintiff in the pantry or
on the guards of the boat ; and if she paid, or offered to pay, the

Digitized by VjOOQ IC


luoal fint-class fare for a meal, she was entitled to eat it in the cabin
of the boat, upon an equality with other first class passengers of like
character and deportment, the red letters in the passage-ticket

The objections raised in the assignment of errors, and ezclnsiyely
relied upon in the argument of counsel, relate to the instructions
giyen and refused by the court. No other points are discussed
and relied upon : our attention therefore will be confined to

IL It is not claimed that the doctrines pertaining to the duties
and obligations of common carriers of passengers, and the force
and effect of contracts made by them for the transportation of per-

Online LibraryUniversity of Chicago. Divinity SchoolThe American law register, Volume 13 → online text (page 20 of 100)