« iepriekšējāTurpināt »
she was in possession of another under a conditional sale; libelants having no knowledge of sach fact or of facts to put them on inquiry.
(Ed. Note,-For cases in point, see Cent. Dig. vol. 34, Maritime Liens, $$ 4-6, 26.] Appeal from the District Court of the United States for the Eastern District of New York.
Herbert Green and Wilcox & Green, for appellant.
LACOMBE, Circuit Judge. The claims in these two causes are against the vessel whose situation we discussed in the opinion in Con-solidation Coal Co. v. The Golden Rod (handed down herewith) 151 Fed. 6. They arose while the vessel was in the possession of Durlacher, with Bliven actually or technically on board as the representative of Watt.
There is no question here of any lien under general maritime law since the work and materials were furnished in New York City, the home port of the vessel. The libelants rely solely on the statute of the state of New York (Laws 1897, pp. 526, 527, c. 418, as amended by chapter 246, p. 494, Laws 1904, $$ 30, 32); notice of lien having been duly filed, as required by the act, in the office of the county clerk. Under a state statute, however, as well as under the general maritime law, a lien will not attach unless it appears that credit was given to the ship. This court so held, after a careful discussion of the authorities, in The Electron, 74 Fed. 689, 21 C. C. A. 12. Apparently a contrary opinion has been reached in the First circuit (The Iris, 100 Fed. 104, 40 C. C. A. 301), but we find in that circumstance no reason for modifying our former opinion, which seems to be in accord with the views of the Supreme Court in The J. E. Rumbell, where, referring to the two varieties of lien, general maritime and local created by state statute, the court says: "Each rests upon the furnishing of supplies to the ship, on the credit of the 'ship herself.'”
The testimony in both causes shows that the labor and material, which were ordered by Bliven, the owner's representative, were furnished upon the credit of the vessel, and, although there is some dispute between the witnesses, we are satisfied that the respective libelants did the work and furnished the materials without knowledge that the owner had chartered the boat, or turned over her possession under some conditional sale, and with no information as to any circumstances which should indicate the necessity of further inquiry as to her situation,
The decrees are affirmed, with interest and costs.
CONSOLIDATED ICE CO. V. HYGEIA DISTILLED WATER CO.
(Circuit Court of Appeals, Third Circuit. February 11, 1907.)
1. TRADE-MARKS AND TRADE-NAMES-NAMES SUBJECTS OF OWNERSHIP-DE
It is not necessary to the validity of a trade-mark or trade-name that it shall be utterly devoid of aptitude, but it is enough that it leaves open to every one all words that are really descriptive of quality or character.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trade-Marks and
Trade-Names, 88 4-7.] 2. SAME_"HYGEIA."
The name “Hygeia" is not used in the English language as a word of descriptive or qualifying import, but as a noun, and it may lawfully be appropriated as a trade-mark or trade-name to identify distilled water of a particular manufacturer,
(Ed. Note.---For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, $$ 4-7.
Arbitrary, descriptive or fictitious character of trade-marks and trade
names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.) 8. SAME-INFRINGEMENT-LOCALITY AND SCOPE OF BUSINESS.
It is not a defense to a suit to enjoin infringement of a trade-mark that the defendant's business is confined to a single state, and that complainant, which is a foreign corporation as to such state, has not complied with
its laws to qualify itself to do business therein. 4. SAME-SUIT FOR INFRINGEMENT-DEFENSES.
It is sufficient to warrant the granting of an injunction against infringement of a trade-name that defendant has used it in a manner which is likely to produce confusion as to the origin of the article to which it is applied, and it is not material that such use was without wrongful intent.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trade-Marks and
For opinion below, see 144 Fed. 139.
Before DALLAS and GRAY, Circuit Judges, and LANNING, District Judge.
DALLAS, Circuit Judge. This is an appeal from a decree in equity wherein it was found and adjudged that the plaintiff below (appellee here) is entitled to the exclusive use of the word “Hygeia” as a tradename or trade-mark in connection with the manufacture and sale of distilled water, and that the defendant below (appellant here) had infringed that right; and, if this declaratory part of the decree was correct, then, of course, the injunctive relief it awarded was not erroneously granted. Consequently the whole case may be adequately dealt with by considering, first, whether the appellee's claim of right to the exclusive use of the word "Hygeia” was properly sustained; and, second, whether, if such right was in fact and in law established, the appellant was shown to have violated it.
First. The appellant's principal contention appears to be that the effect of the word “Hygeia” is to convey the idea of health and healthfulness, as descriptive of the quality and characteristic of the articles to which it is applied,” and that, therefore, no monopoly of its application to distilled water could be acquired. It may safely be assumed that acquaintance with the Grecian goddess of health is not, in this country confined to a few scholars, and it is likewise true, no doubt, that many of those who never heard of that mythological personage would vaguely associate her name with healthfulness; but that it has found a place in our vocabulary as a word of descriptive or qualifying import we have not been convinced. It is a noun, not an adjective; a name, not an epithet. It denominates, but it does not characterize; and accordingly it has been applied—of course but appellatively-to a planetoid that was discovered in 1849. Its association in thought with the concept of health is natural and probable; but this is inconsequential, for it is not necessary to the validity of a trade mark or name that it should be utterly devoid of aptitude. It is enough that it leaves open to every one all words which are really descriptive of quality or character, and to this class the word “Hygeia" cannot reasonably be said to belong. As the name of the goddess of health, it serves to identify her, and this a pictorial representation might do; but to neither name nor portraiture pertains the function of defining, and the fact that for such purpose several words, anglicized from the same source, are commonly employed, quite persuasively indicates that there has been no general imputation of an adjective sense to this substantive form. In short, "Hygeia" is not "hygienic." The two words have not the same meaning, and, whilst a monopoly of the latter could not be accorded to any one without depriving others of its apposite use for ascribing healthfulness to their goods, there is no more reason that the former should be exempted from appropriation than any other nominative or merely designating term which mythology or fiction has fabricated or made familiar. The adjudications in the cases of Waukesha Co. v. Hygeia Co., 63 Fed. 438, 443, 11 C. C. A. 277, 782, and Hygeia Co. v. Hygeia Co., 70 Conn. 516, 40 Atl. 534, and Id., 72 Conn. 646, 45 Atl. 957, 49 L. R. A. 147, have been discussed at some length by counsel; but it is enough for us to say of them that they have had our respectful and careful consideration without shaking our confidence in the correctness of the views we have expressed, and with which, at least in part, they seem to agree.
The further contention that, even if the appellee's title to the exclusive use of the word “Hygeia” were generally valid, yet it could not be effectively asserted in the state of Pennsylvania, cannot be sustained. In the first place, the facts which this contention assumes were neither alleged nor proved. It is true that the complainant's existence in that state was denied, because, as averred, “it has never complied with the laws of the state of Pennsylvania, authorizing it to do business within the said state”; but the answer, which contained this averment, neither specified the laws alluded to nor stated in what the complainant's failure to comply with them consisted. Apart, however, from these deficiencies, the defense suggested was not a legally sufficient one. If, as is argued, the statute to which we are told it was intended to refer
does, by reason of the assumed noncompliance of the appellee with its requirements, prohibit that corporation from entering the state of Pennsylvania, by its agents, and there prosecuting its ordinary business, yet isolated transactions between a foreign corporation and citizens of that state have been held not to come within its prohibition. Del. Co. v. Railway Co., 204 Pa. 22, 53 Atl. 533. And if this were not so, still it would, in our opinion, be quite impossible to hold that the appellee's omission to lawfully enter the state of Pennsylvania would justify the use of its trade mark or name by any other corporation in prosecuting its business within the territorial limits of that State. The right of property in a trade-mark is incapable of being so curtailed. It is not limited to any place, city or state and therefore must be deemed to extend everywhere." Kidd v. Johnson, 100 U. S. 619, 25 L. Ed. 769.
Second. The appellant's use of the word “Hygeia," "in combination, as 'Hygeia Distilled Water,'” is admitted; and the fact that it has used it only in that way and without wrongful intent is not material. It is enough that it is so used as to be likely to produce confusion as to the origin of the article to which it is applied. This sufficed to warrant the granting of an injunction, and there was no decree for damages. Dennison Manufacturing Co. v. Thomas Manufacturing Co. (C. C.) 94 Fed. 656; Shaw et al. v. Pilling, 175 Pa. 87, 34 Atl. 446; Collins v. Ames (C. C.) 18 Fed. 561; Singer v. Wilson, 3 H. L. 376.
Without referring to the specifications of error in detail, we have passed upon all the points they present which seem to us to be substantial, and it remains but to say that after thorough investigation of the whole case the conclusion has been reached that the decree of the Circuit Court should be affirmed, and therefore it is so ordered.
In re KUFFLER.
(Circuit Court of Appeals, Second Circuit. January 7, 1907.)
BANKRUPTCY-REFUSAL OF DISCHARGE-SECOND PROCEEDING.
The denial of the application of a bankrupt for a discharge renders the issue as to his right to a discharge res judicata as to debts which were provable in that proceeding, and, where in a subsequent voluntary proceeding the bankrupt schedules the same debts and the same assets, the second proceeding is a manifest attempt to evade the effect of the former, and the bankrupt should be restrained by the court from prosecuting a second application for a discharge; but, where a considerable time has elapsed and new debts are also scheduled, the bankrupt has the right to maintain the proceeding as to those, and an order granting a stay should be limited accordingly. Appeal from the District Court of the United States for the Eastern District of New York.
For opinion below, see 144 Fed. 445.
S. S. Myers, for appellant.
J. G. Moses, Benjamin Tuska, and Page, Crawford & Tuska, for appellee.
Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.
PER CURIAM. The bankrupt has appealed from an order of the District Court for the Eastern District of New York setting aside an order of adjudication in bankruptcy in a voluntary proceeding commenced in December, 1905, dismissing the bankruptcy proceeding, and enjoining the bankrupt permanently from further prosecution thereof. This order was made upon the application of certain creditors of the bankrupt whose debts were included in his schedule. It appeared upon the application that the appellant was adjudged a bankrupt August 8, 1899, in a proceeding in the District Court for the Southern District of New York; that November 5, 1899, he filed a petition in that proceeding for a discharge from his debts; that specifitions in opposition to his discharge were filed by his creditors; and that October 12, 1903, upon the application of the opposing creditors, and after hearing the bankrupt, the court dismissed his application for a discharge for want of proper prosecution. It further appeared that debts scheduled in the present proceeding to the amount of $70,000 were scheduled in the former proceeding, and a few small debts scheduled in the present proceeding were not scheduled in the former pro ceeding, and that the property scheduled in the present proceeding was of trifling value.
If the application in the court below had been directed to obtaining a stay of any application for a discharge from the debts scheduled in the former proceeding, and the court below had limited its order accordingly, we should have no difficulty in affirming the order. Obviously it was the principal purpose of the present proceeding to enable the bankrupt to renew his unsuccessful application to be discharged from his debts in thė former proceeding, and to that extent to resuscitate the former proceedings. If this were permitted, the creditors who successfully opposed his discharge in the former proceeding would be compelled to litigate over again the issue which had been finally adjudicated in their favor. They should not be subjected to this hardship. If any of these creditors should seek to enforce by an action his debt against the after-acquired property of the bankrupt, not having procured a stay in the second bankruptcy proceeding, he might be met with a discharge in that proceeding as a bar to his action. Under the act of 1898 the denial of an application for a discharge from debts provable in one proceeding in bankruptcy renders the issue of the right to a discharge res adjudicata as to such debts in a subsequent proceeding; and a failure of the bankrupt to apply for a discharge within 12 months after the adjudication in the earlier proceeding has the same effect. Kuntz v. Young, 131 Fed. 719, 65 C. C. A. 477. Where the same debts and the same assets are scheduled in the two proceedings, one being commenced subsequent to the termination of the other, it is manifest that the last proceeding is merely an attempt