M. J. Breitenbach Co. v. Spangenberg

U.S. Circuit Court for the District of Southern New York

M. J. Breitenbach Co. v. Spangenberg

131 F. 160, 1904 U.S. App. LEXIS 4895

CourtU.S. Circuit Court for the District of Southern New York

DecidedJune 15, 1904

StatusPublished

This text of 131 F. 160 (M. J. Breitenbach Co. v. Spangenberg) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

M. J. Breitenbach Co. v. Spangenberg, 131 F. 160, 1904 U.S. App. LEXIS 4895 (circtsdny 1904).

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Opinion

HOLT, District Judge.

I do not think that the name “Pepto-Mangan” is simply descriptive, within the meaning of that term in the law •of trade-marks. It seems, if analyzed by a person familiar with the Greek and German languages, somewhat descriptive, but I think it would seem to the general public to be an artificial and manufactured word. The complaint alleges that the inventor “adopted the arbitrary .and fanciful words 'Pepto-Mangan’ as the trade-mark and trade-name” by which to designate his preparation, and the demurrer formally admits this allegation. Evidence possibly might lead to a different conclusion, but on this demurrer I think it clear that the court cannot assume that the term “Pepto-Mangan” is purely descriptive, but must assume that it is an arbitrary and fanciful trade-mark. That being so, it is not at all clear, under the authorities, that the defendants did not infringe the rights of the complainant when they adopted as the name of their preparation “Pepto-Manganate of Iron and Cascara.” Moreover, the complaint alleges that the defendants have substituted their tablets, and supplied them to customers who have asked at their store for the complainant’s “Pepto-Mangan.” This allegation is formally .admitted by the demurrer, and constitutes a legal cause of action, which, if supported by evidence, would authorize a recovery. Undoubtedly some of the facts alleged in the complaint do not constitute any legal cause of complaint, but I think that it is impossible to hold, upon this demurrer, that no cause of action whatever is alleged.

Demurrer overruled, with leave to defendants to answer within 20 days on payment of costs.

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HOLT, District Judge.

I do not think that the name “Pepto-Mangan” is simply descriptive, within the meaning of that term in the law •of trade-marks. It seems, if analyzed by a person familiar with the Greek and German languages, somewhat descriptive, but I think it would seem to the general public to be an artificial and manufactured word. The complaint alleges that the inventor “adopted the arbitrary .and fanciful words 'Pepto-Mangan’ as the trade-mark and trade-name” by which to designate his preparation, and the demurrer formally admits this allegation. Evidence possibly might lead to a different conclusion, but on this demurrer I think it clear that the court cannot assume that the term “Pepto-Mangan” is purely descriptive, but must assume that it is an arbitrary and fanciful trade-mark. That being so, it is not at all clear, under the authorities, that the defendants did not infringe the rights of the complainant when they adopted as the name of their preparation “Pepto-Manganate of Iron and Cascara.” Moreover, the complaint alleges that the defendants have substituted their tablets, and supplied them to customers who have asked at their store for the complainant’s “Pepto-Mangan.” This allegation is formally .admitted by the demurrer, and constitutes a legal cause of action, which, if supported by evidence, would authorize a recovery. Undoubtedly some of the facts alleged in the complaint do not constitute any legal cause of complaint, but I think that it is impossible to hold, upon this demurrer, that no cause of action whatever is alleged.

Demurrer overruled, with leave to defendants to answer within 20 days on payment of costs.

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Bluebook (online)

131 F. 160, 1904 U.S. App. LEXIS 4895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-j-breitenbach-co-v-spangenberg-circtsdny-1904.