La Societe Anonyme Des Mines v. Baxter

14 F. Cas. 1164, 14 Blatchf. 261, 1877 U.S. App. LEXIS 1853

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: June 12, 1877
• Status: Published

Opinion

BLATCHFORD, District Judge.

On the allegations of the bill, the plaintiffs can claim their trade-mark only for the dry white oxide of zinc. It does not appear that they ever sold that article ground in oil, or ever applied such trade-mark to that article ground in oil.. The fact that the defendants sell a paint composed of a white oxide of zinc ground in oil, and represent it as containing white oxide of zinc made by the plaintiffs, when it does not contain white oxide of zinc made by the plaintiffs, is no violation of any trade-mark of the plaintiffs. The defendants have not sold the dry white oxide in that state. It is not shown that the plaintiffs have sold such oxide ground in oil. It is true that the oxide is intended to be ground with oil, for a paint. So, flour is intended to be made into bread. But, if a baker should falsely stamp his bread with the mark of a particular brand of flour, the maker of such brand, if having a trademark therefor, could not claim that the baker had violated his trade-mark. And so of any other raw material which enters as. an ingredient into a compound or article of manufacture. The application must be denied.