follow that several improvements in two different machines, having distinct and independent operations, can be so included. So, too, in Wyeth v. Stone, supra, it was said that a single patent cannot be taken for two distinct machines not conducing to the same common purpose or object, but designed for totally different and independent objects. See also Root v. Ball & Davis, 4 McLean, 177.

In Evans v. Eaton (3 Wheat., 454-506) the Supreme Court intimated a doubt whether a patentee could claim in the same patent improvements on different mechanisms, so as to give a right to the exclusive use of the several mechanisms separately, as well as a right to the exclusive use of these mechanisms conjointly.

In Hogg v. Emerson (11 Howard, 587) it was held by a majority of the court that the inventions in question, which related to an improvement in the steam-engine and in the mode of propelling therewith either vessels on the water or carriages on the land, were all a part of one combination when used on the water, and therefore might be included in one patent. The court say it is doubtful on principle whether a patent is invalid which is for two or more entirely separate and independent inventions, but that it is settled by authority that a patent for more than one invention is not void if they are connected in their design and op. eration, and this they held was the case before them. Four of the justices, including the chief justice, dissented, and in the dissenting opinion of Mr. Justice Catron it is impliedly held that distinct and disconnected inventions cannot be included in one patent.

Except some decisions of the Commissioner of Patents cited in the brief of counsel, the cases referred to are all the adjudications bearing upon this question which have been brought to the attention of the court. There may be other cases in which the question has arisen. In the light of judicial decision on the subject, it is doubtful whether the patentee Taylor could rightfully claim his various inventions in one patent, although they were all designed to be applied to a trunk and related to an improvement in trunks. The patent is for each improvement or device specified in the respective claims. The specification of one is separate and distinct from the other, and each is capable of a separate and independent use. Even if one is in a certain sense auxiliary to the other, it is not indispensable to the use of the otherIn fact, there is no connection either in purpose, design, or operation between the several inventions. They are not like a combination of various devices or improvements, all of which make one operative mechanism-one concrete organization. They are all designed for use upon one articlenamely, a trunk; but they do not all tend to the accomplishment of a single result further than that all combine generally to improve the trunk. Each is a distinct invention or improvement by itself, and the opera. tion of one has no relation to the operation of the others. Although all may be placed upon the same trunk, each singlp has a distinct and appropriate use, and in such use they are unconnected. At best it is a

matter of serious doubt whether all the claims of the patentee should have been joined in one patent. The case is one in which it seems to be within the province of the court to permit the patentee and his assigus, if they shall desire so to do, to file in the Patent Office a disclaimer, so as only to claim the invention specified in the third claim of the patent, and I shall dispose of the case by making the filing of such disclaimer a condition upon which the relief prayed in the bill will be granted.

The remaining defense is that the complainant is not entitled to a decree for an accounting, because certain of the patented articles, of which the trunk-fasteners in evidence marked "Exhibits 13 and 15" are samples, were not marked "patented," as required by section 4900 Revised Statutes. The fasteners not so marked are known as the small sizes. The statute provides that it shall be the duty of all patentees to give notice to the public that the article is patented by fixing thereon. the word "patented," together with the day and year the patent was granted, or, when from the character of the article this cannot be done, by fixing to it or to the package wherein one or more of them is inclosed a label containing the like notice. As this defense is not set up in the answer, it is doubtful if it can be made at the hearing. Rubber Compauy v. Goodyear, 9 Wall., 788. However this may be, the complainant testifies that it is so difficult to stamp the patented article of the sizes in question, as required by the statute, that the packages in which they are shipped are so stamped and labeled, as are also the invoices. I think the omission to stamp the article itself is sufficiently explained, and that this defense ought not to be sustained.

When the complainant shall have furnished sufficient proof to the court that a proper disclaimer has been filed in the Patent Office, so that he shall claim only the invention specified in the third claim of the patent, a decree will be entered enjoining the infringement of that claim, and for an accounting of profits and damages, but without costs.

[United States District Court-Western District of Arkansas.]

THE LIGGETT & MYERS TOBACCO COMPANY v. HYNES.

Decided July 15, 1884.

28 O. G., 809.

1. The leading principle of the law of trade-marks is that the honest, skillful, and industrious manufacturer or enterprising merchant who has brought into market an article which has found favor with the people, and who, by affixing to it some name or device to distinguish it as his and from all others, has furnished his guarantee of the quality and integrity of the manufacture, shall receive the first reward of his honesty, industry, skill, or enterprise.

2. Such a person is not in any manner or extent to be deprived of the right he has acquired by another who, to that end, applies to his own productions the same mark or a colorable imitation thereof.

3. In considering an alleged imitation of a trade-mark sight must not be lost of the character of the merchandise, the use to which it is put, the kind of people who ask for it, and the manner in which they usually order it.

4. If the article on which the alleged infringing mark is placed resembles another article bearing the trade-mark that is claimed to have been infringed, so that this resemblance, when blended with the appearance of the device, has a tendency to deceive the ordinary public, then the very nature of the article becomes poteutial evidence in the case to show a purpose to deceive.

5. While there is no trade-mark in the shape of complainant's plug of tobacco, yet when defendant makes plugs of the same general appearance and puts on them a device of such general resemblance to complainant's that the ordinary customer is deceived thereby, there is clear ground for an injunction.

Mr. Paul Bakewell for the complainant.

Messrs. Clendening & Saudels for the defendant.

PARKER, J.:

The law is well settled that a party who has appropriated a particular trade-mark to distinguish his goods from other similar goods has a right or property in it which entitles him to its exclusive use, and this right is of such a nature that equity will protect it by injunction from innovation, Hosttetter v. Van Winkle, 1 Dillon, 329.

The leading principle upon which the law of trade mark is based is that the honest, skillful, and industrious manufacturer or enterprising merchant who has produced or brought into the market anarticle of use or consumption that has found favor with the people, and who, by affixing to it some name, mark, device, or symbol, which serves to distinguish it as his, and to distinguish it from all others, has furnished his individual guarantee and assurance of the quality and integrity of the manufacture, shall receive the first reward of his honesty, skill, industry, or enterprise, and shall in no manner and to no extent be deprived of the same by auother who, to that end, appropriates and applies to his own productions the same or a colorable imitation of the same name, mark, device, or symbol, so that the public are or may be deceived or misled into the purchase of the productions of the one, supposing them to be those of the other. Waite's Actions and Defenses, vol. 6, p. 23, and authorities there cited. The question to be considered in this case is whether the conduct of the defendant amounts to an infringement of the plaintiff's trade-mark or an injury to his legal or equitable rights. As was well remarked by the Kentucky court of appeals in the case of Avery & Sons v. Meickle & Co.:

The object of the trade-mark law is to prevent one person from selling his goods as those of another, to the injury of the latter and the public. It grew out of the philosophy of the general rule that every man should so use his own property and rights as not to injure the property or rights of another, unless some priority of right or emer. gency exists to justify a necessarily different manner of use.

It is true in this case that the trade-mark upon the tobacco of the defendant is not a fac-simile of that upon the tobacco of the plaintiff. If it was it would of course be an infringement. They are not exactly similar; but to constitute an infringement exact similarity is not re. quired. There may be an infringement without it.

The Supreme Court of the United States, in Gorham Company v. White (14 Wallace, 511), declares:

Two trade-marks are substantially the same in legal contemplation if the resemblance is such as to deceive an ordinary purchaser giving such attention to the same as an ordinary purchaser usually gives, and to cause him to purchase the one supposing it to be the other.

The same court, in McLean v. Fleming (Otto, 255,) says:

Where the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser in the exercise of ordinary care and caution in such matters, it is sufficient to give the injured party a right of redress. Nor need the resemblance be such as would deceive persons seeing the two trade-marks placed side by side [Manufacturing Company v. Trainer, 101 U. S., 64], or such as would deceive experts-persons because of their peculiar knowledge from their being wholesale or retail dealers or in any other way specially conversant with the trade-mark simulated. But the tradesman brings his privlege of using a particular trade-mark under the protection of equity if he proves, or it is apparent or manifest to the court by inspection, that the representations employed bear such a resemblance to his as to be calculated to mislead the public generally who as purchasers of the article to make it pass with them for the one sold by him. If the indicia or signs used tend to that result the party aggrieved will be entitled to an injunction.

This principle is sustained by the causes above referred to by Walton v. Crowley (3 Blatchford, 440), 2 Story's Equity Jurisprudence, 951,952, Kent's Commentaries, 453, and a long and unbroken line of authorities, American aud English. The difference in the trade-marks of the plaintiff and defendant in this case would perhaps be at once detected by the intelligent user of tobacco looking for his favorite brand, just as the man of luxurious tastes would discover his favorite brand of champagne. But the plaintiff is entitled to protection if the trade-mark of the defendant would deceive the ordinary purchaser, purchasing as such persons ordinarily do. In this connection we must not lose sight of the character of the article, the use to which it is put, the kind of people who ask for it, and the manner in which they usually order it. There is no proof in this case coming from living witnesses that the defendant adopted the trade-mark complained of with the specific intent of selling his tobacco as the tobacco of the plaintiff, or that he expected to deceive the public. But if this is apparent to the court from an inspection of the two articles, or the court is able to see by such inspection that plaintiff's trade-mark is so simulated as probably to deceive customers or patrons of his trade or business, there is good ground for the court to enjoin. Tilley v. Fassett, 43 Mo., 173.

If the effect of the simulated trade-mark is to deceive the public into the belief that the article upon which it is placed is the article of some other manufacturer, there is a deception, whether it was the actual intention of the person using the simulated trade-mark to deceive or not, as the principle of law applies that persons are held to have intended the necessary, natural, and probable consequences of their acts. In looking at the trade-mark to see whether it is so far an imitation of another as to deceive ordinary customers exercising ordinary care when

purchasing, we must not look at the device alone, but we must also examine the article upon which it is placed; and if there is a resemblauce in it to another article bearing the trade-mark that is claimed to have been infringed, and if this resemblance when blended with the appearance of the device has a tendency to deceive the ordinary public into the belief that they are buying the other article, then the very nature of the article becomes potential evidence in the case to show a purpose to deceive. In this case, if the device of the defendant was upon a plug of tobacco different in shape from that of complainant, the chance of deception would be so slight that no court could find from the appearance of the two designs that the ordinary public would be deceived.

Now, while there is no trade-mark in the shape of the plug of tobacco of complainant, and consequently the defendant could make his plugs in any shape he pleased without being guilty of an infringement, yet when he makes his plugs in such a way as to give them the general appearance of the complainant's and puts on any device of such a character and shape and appearance as that the customer generally, when be sees the shape and appearance of the plug and the device on it, will be deceived into the belief that it is complainant's tobacco that he is buying, there is a state of case presented by blending the size, nature, structure, and appearance of the plug with the device which would not exist if we viewed either the plug of tobacco or the device separately. Taking this as the true rule and applying it in this case, I am forced to the conclusion that the ordinary mass of purchasers would be deceived after paying ordinary attention when purchasing into the belief that they were getting the tobacco of the complainant. Ordinary care in this connection means the care that men ordinarily exercise when buying chewing-tobacco.

Entertaining this view of the case, I think complainant is entitled to an injunction enjoining the defendant from using the device adopted by him. And it will be so ordered.

[United States Circuit Court-Northern District of Illinois.]

LYMAN v. MAYPOLE ET AL.

Decided February 11, 1884.

28 O. G., 810.

1. The law permits an inventor to construct a machine which he is engaged in studying upon and developing and place it in friendly hands for the purpose of testing it and ascertaining whether it will perform the functions claimed for it, and if these machines are strictly experiments, made solely with a view to perfect the device, the right of the inventor remains unimpaired; but when an inventor puts his incomplete or experimental device upon the market, and sells it as a manufacturer more than two years before he applies for his patent, he gives to the public the device in the condition or stage of development in which he sells it. In such case his patent cannot be allowed to relate back and cover forms which he gave to the public more than two years before he applied for a patent.