Home/Eighth Circuit/Centaur Co. v. Marshall

Centaur Co. v. Marshall

97 F. 785, 38 C.C.A. 413, 1899 U.S. App. LEXIS 2638
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 23, 1899
DocketNo. 1,239
StatusPublished
Cited by11 cases

This text of 97 F. 785 (Centaur Co. v. Marshall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Centaur Co. v. Marshall, 97 F. 785, 38 C.C.A. 413, 1899 U.S. App. LEXIS 2638 (8th Cir. 1899).

Opinion

SANBORN, Circuit Judge.

Upon the motion of the appellant, the Centaur Company, a corporation, the court below enjoined the appellees, George W. Marshall and the Marshall Medicine Company, a corporation, during the pendency of this suit, from using the words “New Label” on the wrappers in which they inclosed the medicine called "Castoria” which they were manufacturing and selling, and denied the prayer of the appellant that a preliminary injunction should issue forbidding them' to use the word “Castoria,” to use two or three wrappers whose use they had abandoned before the hearing, to use as an advertisement a certain extract from Hall’s Journal, of Health whose use they agreed in writing to discontinue, and to use a certain wrapper which they were still using and which they insisted they had the right to use. From this order the Centaur Company appealed, and it insists that the temporary injunction should have restrained the appellees from the use of all their wrappers, and from the use of the extract from the Journal of Health; but it concedes that it did not ask the court below to issue any preliminary injunction against the use of the word “Castoria,” in view of the decision of this court in Centaur Co. v. Heinsfurter, 84 Fed. 955, 28 C. C. A. 581, 56 U. S. App. 7, to the effect that any one has the right to manufacture and sell “Castoria” under that name.

The purpose of a preliminary injunction is to prevent irremediable injury to some of the parties to the suit during its pendency, and before their claims can be investigated and adjudicated. The burden is on the moving party to show that such an injury is threatened, and will probably be inflicted, before the case can be Anally decided, unless the injunction issues. The granting or withholding such a temporary injunction rests largely in the sound judicial discretion of the court, and much latitude is and ought to be allowed for the exercise of that discretion, in view of the fact that the personal acquaintance with and observation of the parties at the hearing, which the trial court enjoys, are of great assistance in reaching a just conclusion. The presumption always is that the decision of that court is right, and, unless it appears from the record with reasonable clearness that it has made a mistake m its apprehension of the facts or has fallen into some error of law, its conclusion should not be disturbed by an appellate court. In view of these familiar rules of equity jurisprudence, the question here is whether or not this record shows that the appellant will probably suffer an “injury,” in the legal sense of that term, on account of the withholding of a more sweeping injunction, before its case can be heard and decided upon its merits.

One of the complaints of the appellant is that the court below did not restrain the appellees from using certain wrappers whose use the record shows they had abandoned before the hearing upon the application for the injunction. Another is that it did not forbid them to use as an advertisement the extract from Hall’s Journal of Health, which they agreed in writing at the hearing to cease to use. It may be that it would not have been reversible error for the court below to have issued such an injunction, since it could not have injured the appellees. But, on the other hand, there is no evidence or proof that [787]*787this refusal inflicted, or that it will inflict, any injury upon the appellant. There is no intimation in the record that the appellees have broken, or are likely to break, faith with the trial court; that they are using, are likely to use, or that they threaten or intend to use, the abandoned wrappers or extract. The circuit court, whose knowledge of the acts and characters of the parties to this suit was necessarily more intimate and complete than ours can he, was satisfied, by their written agreement and affidavits, that they would not do so, and we cannot presume, in the absence of proof, that its conclusion was not justified or that its discretion was not wisely exercised here. If, at any time since the hearing below, the appellees have resumed the use of these abandoned wrappers or of ibis extract, the trial court has been open at all times for a renewal of the motion of the appellant upon proof of these facts, and its power to give adequate relief has been ample, so that we can conceive of no circumstances under which serious injury can have been entailed upon the appellant by the order of the court in this regard. There was, in our opinion, no error and no abuse of discretion in the refusal of that court to enjoin the use of the abandoned wrappers and the advertisement, and, except as evidence of the intent of the appellees, we here dismiss this portion of this case.

The question remains whether or not the continued use, during the pendency of this suit, of the wrapper with which the appellees dressed their goods at the time of the hearing below, without the words '‘New Label,” will probably inflict injury upon the appellant. The claim of the appellant that it will do so rests upon the proposition that this wrapper is a simulation of that which the appellant used long before the appellees commenced to make or sell Oastoria, and which it still uses; that it is calculated to deceive purchasers, and to induce them to buy the appellees’ Oastoria under the mistaken belief that it is that made and sold by the appellant; and that its use constitutes unfair competition in trade. There is no evidence in the record that any one has been deceived by the appellees’ wrapper, or that any purchaser ever was induced by it to buy their Oastoria in the belief that it was the medicine made by the appellant, so that the question whether or not. it is calculated to and will be likely to work such a deception is susceptible of determination only by an examination of the wrappers used by the respective parties to this suit. These wrappers cover the four sides of the bottles in which the medicine is contained, hut the covers of the sides and of the backs of the bottles which the two wrappers of the respective parties furnish are so dissimilar that no claim of probable deception can possibly be sustained upon them, and we shall not reproduce or consider them here. Besides, the fronts of the bottles are generally the only portions noticed, or examined by purchasers, and by their likeness or difference the question at issue must he answered. Here are the faces of the bottles of the appellant and of the appellees as they appear when dressed in their respective wrappers, ready for sale, except that the paper used by the appellant is slightly tinged with yellow, while that used by the appellees is white:

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Bluebook (online)
97 F. 785, 38 C.C.A. 413, 1899 U.S. App. LEXIS 2638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/centaur-co-v-marshall-ca8-1899.