CLIFFORD, Circuit Justice.
Equity gives relief for the infringement of a trade-mark, upon the ground that one man is not allowed to offer his goods for sale, representing the goods to be the manufacture of another in the same commodity. Seixo v. Provezende, 1 Ch. App. 195. What degree of resemblance is necessary to constitute an infringement is incapable of exact definition; but the rule is, that no trader can adopt a trade-mark so resembling that of another as that ordinary purchasers, buying with ordinary caution, are likely to be misled. McLean v. Fleming, 96 U. S. 245. Two trade-marks are substantially the same in legal contemplation if the resemblance is such as to deceive ordinary purehasers, giving such attention to the same as such purchasers usually give, and to cause them to purchase the one manufacture,' supposing it to be the other. Gorham Co. v. White, 14 Wall. [81 U. S.) 528.
Belief is claimed in this case upon the special grounds set forth in the bill of complaint. They are, in substance and effect, as follows:
1. That the corporation complainants for a long time have been and now are the manufacturers and vendors of an article of medicine called and known as “Atwood’s Vegetable Physical Jaundice Bitters,” taken internally, for the cure of jaundice and other diseases; that during all the time they have been engaged in making and selling the article, it has been put up and sold in the same manner, and with the same trade-marks, labels. and wrappers affixed thereto, in glass bottles, with twelve panel-shaped sides, having on five of the sides the raised words and letters, “Atwood’s Genuine Physical Jaundice Bitters, Georgetown, Mass.,” blown in the glass on each bottle, each bottle containing about a pint Of the medicine in liquid form, labelled with a light-yellow printed label, pasted on the outside, as fully set forth in the bill of complaint.
2. That the said medicine was first invented and put up for sale about twenty-five years ago by one Dr. Moses Atwood, formerly of Georgetown, Mass., by whom, his assigns and successors, the same has been ever since made and sold by the same name, in the same manner, and with the same trade-marks and description.
3. That the complainants, long prior to the alleged infringement, became the lawful, sole, and exclusive owners of the formula or recipe for making said medicine, and of the sole and exclusive right to use said name or designation therefor, together with all said trade-marks, labels, and goodwill of the business of making and selling said medicine.
4. That the respondents, prior to the filing of the bill of complaint, at Portland, and at divers other places unknown to the complainants, have manufactured and sold, and are still manufacturing and selling, large quantities of medicine, of an inferior quality, in imitation of the article manufactured and sold by the complainants, and without their consent.
5. That during all that time the respondents have made, put up, and sold, and still make, put up, and sell their said imitation and counterfeit article as and for the genu[613]*613ine article of the complainants, so put up, marked, and labelled, that it is very difficult to be distinguished from the complainants’ genuine article.
6.Based on these allegations, the complainants pray for an account and for an injunction, restraining the respondents from affixing or applying to any article of medicine manufactured, sold, shipped or supplied by them, or to the bottles or packages in which the same is put up, the complainants’ trademark words, to wit, “Atwood’s Vegetable Physical Jaundice Bitters,” or either of said words, or any imitation thereof.
Service was made, and the respondents appeared and filed an answer, setting up several defences to the following effect:
1. They admit that complainants purchased all the right, which the parties named in the answer owned, to prepare the Atwood Bitters, but they deny that those parties held or possessed the exclusive right to manufacture the same, or any exclusive right whatever to the same, or any exclusive right to any trade-mark, label, or wrapper, consisting of a glass bottle with panel-shaped sides, and with the raised words and letters, “Atwoods’s Genuine Physical Jaundice Bitters, Georgetown, Mass.,” blown in the glass; nor did they possess any exclusive right to the preparation of the medicine in a liquid form, or to the light-yellow printed' label pasted to said bottle, upon which were the words, “Atwood’s Vegetable Physical Jaundice Bitters.” Nor did they possess any exclusive right to the residue of what is printed upon the label, and set forth in the bill of complaint.
2. That the twelve-panel bottle, the yellow label, the words “Atwood’s Bitters,” together with the other words alleged to be printed on said label, were in public and common use by a large number of manufacturers.
3. That the complainants did not purchase and do not now own the exclusive right, nor the entire right, to said bottle, label, and words, or either of them, as alleged, because their said assignors were not the exclusive proprietors of the same, and therefore could not sell and dispose of what they did not own.
4. They deny that Moses Atwood first invented and put up the said medicine for sale, and allege that it was first put up by Moses F. Atwood, of Georgetown, Mass., in connection with L. H. Bateman, not in a panelled bottle, but in a smooth, round bottle, without panels; that the round bottle used by Bateman had no words blown in the glass, and that the bottles which contained words blown in the glass were rectangular in form and without panels, and that Moses Atwood first used a white label and a round bottle having no panels or blown letters.
5. That Moses P. Atwood, and not Moses Atwood, first obtained the formula for the medicine from some physician to these respondents unknown, and prepared the same according to the formula, and not according to any invention of himself or of said Moses Atwood; and that, subsequently thereto, the medicine put up by him and Bateman began to be called “Atwood’s Bitters.”
6. That the respondent first named, in May, 1801, purchased the recipe for the medicine, and the right of using the bottle and label, that he has a right to use the same, and that no person has ever pretended to interrupt him in such use prior to the present suit.
7. That L. P. Atwood, the brother of Moses Atwood, also had a right to use the said label and bottle, and that he sold such a right to H. H. Hay, of Portland, who uses the same on the bottles containing the medicine.
8. That they have been in the practice of preparing the medicine, under the recipe bought of Moses P. Atwood, for the period of fourteen years, and that they have spent large sums of money in advertising the medicine, and in creating a market for the same.
Proofs were taken on both sides, and the evidence is voluminous and somewhat conflicting. Any discussion of the legal questions arising in the case would not be of much advantage until the facts are ascertained, which will be best accomplished by distinct findings.
Pursuant to that view, the court finds as follows:
1.
Free access — add to your briefcase to read the full text and ask questions with AI
CLIFFORD, Circuit Justice.
Equity gives relief for the infringement of a trade-mark, upon the ground that one man is not allowed to offer his goods for sale, representing the goods to be the manufacture of another in the same commodity. Seixo v. Provezende, 1 Ch. App. 195. What degree of resemblance is necessary to constitute an infringement is incapable of exact definition; but the rule is, that no trader can adopt a trade-mark so resembling that of another as that ordinary purchasers, buying with ordinary caution, are likely to be misled. McLean v. Fleming, 96 U. S. 245. Two trade-marks are substantially the same in legal contemplation if the resemblance is such as to deceive ordinary purehasers, giving such attention to the same as such purchasers usually give, and to cause them to purchase the one manufacture,' supposing it to be the other. Gorham Co. v. White, 14 Wall. [81 U. S.) 528.
Belief is claimed in this case upon the special grounds set forth in the bill of complaint. They are, in substance and effect, as follows:
1. That the corporation complainants for a long time have been and now are the manufacturers and vendors of an article of medicine called and known as “Atwood’s Vegetable Physical Jaundice Bitters,” taken internally, for the cure of jaundice and other diseases; that during all the time they have been engaged in making and selling the article, it has been put up and sold in the same manner, and with the same trade-marks, labels. and wrappers affixed thereto, in glass bottles, with twelve panel-shaped sides, having on five of the sides the raised words and letters, “Atwood’s Genuine Physical Jaundice Bitters, Georgetown, Mass.,” blown in the glass on each bottle, each bottle containing about a pint Of the medicine in liquid form, labelled with a light-yellow printed label, pasted on the outside, as fully set forth in the bill of complaint.
2. That the said medicine was first invented and put up for sale about twenty-five years ago by one Dr. Moses Atwood, formerly of Georgetown, Mass., by whom, his assigns and successors, the same has been ever since made and sold by the same name, in the same manner, and with the same trade-marks and description.
3. That the complainants, long prior to the alleged infringement, became the lawful, sole, and exclusive owners of the formula or recipe for making said medicine, and of the sole and exclusive right to use said name or designation therefor, together with all said trade-marks, labels, and goodwill of the business of making and selling said medicine.
4. That the respondents, prior to the filing of the bill of complaint, at Portland, and at divers other places unknown to the complainants, have manufactured and sold, and are still manufacturing and selling, large quantities of medicine, of an inferior quality, in imitation of the article manufactured and sold by the complainants, and without their consent.
5. That during all that time the respondents have made, put up, and sold, and still make, put up, and sell their said imitation and counterfeit article as and for the genu[613]*613ine article of the complainants, so put up, marked, and labelled, that it is very difficult to be distinguished from the complainants’ genuine article.
6.Based on these allegations, the complainants pray for an account and for an injunction, restraining the respondents from affixing or applying to any article of medicine manufactured, sold, shipped or supplied by them, or to the bottles or packages in which the same is put up, the complainants’ trademark words, to wit, “Atwood’s Vegetable Physical Jaundice Bitters,” or either of said words, or any imitation thereof.
Service was made, and the respondents appeared and filed an answer, setting up several defences to the following effect:
1. They admit that complainants purchased all the right, which the parties named in the answer owned, to prepare the Atwood Bitters, but they deny that those parties held or possessed the exclusive right to manufacture the same, or any exclusive right whatever to the same, or any exclusive right to any trade-mark, label, or wrapper, consisting of a glass bottle with panel-shaped sides, and with the raised words and letters, “Atwoods’s Genuine Physical Jaundice Bitters, Georgetown, Mass.,” blown in the glass; nor did they possess any exclusive right to the preparation of the medicine in a liquid form, or to the light-yellow printed' label pasted to said bottle, upon which were the words, “Atwood’s Vegetable Physical Jaundice Bitters.” Nor did they possess any exclusive right to the residue of what is printed upon the label, and set forth in the bill of complaint.
2. That the twelve-panel bottle, the yellow label, the words “Atwood’s Bitters,” together with the other words alleged to be printed on said label, were in public and common use by a large number of manufacturers.
3. That the complainants did not purchase and do not now own the exclusive right, nor the entire right, to said bottle, label, and words, or either of them, as alleged, because their said assignors were not the exclusive proprietors of the same, and therefore could not sell and dispose of what they did not own.
4. They deny that Moses Atwood first invented and put up the said medicine for sale, and allege that it was first put up by Moses F. Atwood, of Georgetown, Mass., in connection with L. H. Bateman, not in a panelled bottle, but in a smooth, round bottle, without panels; that the round bottle used by Bateman had no words blown in the glass, and that the bottles which contained words blown in the glass were rectangular in form and without panels, and that Moses Atwood first used a white label and a round bottle having no panels or blown letters.
5. That Moses P. Atwood, and not Moses Atwood, first obtained the formula for the medicine from some physician to these respondents unknown, and prepared the same according to the formula, and not according to any invention of himself or of said Moses Atwood; and that, subsequently thereto, the medicine put up by him and Bateman began to be called “Atwood’s Bitters.”
6. That the respondent first named, in May, 1801, purchased the recipe for the medicine, and the right of using the bottle and label, that he has a right to use the same, and that no person has ever pretended to interrupt him in such use prior to the present suit.
7. That L. P. Atwood, the brother of Moses Atwood, also had a right to use the said label and bottle, and that he sold such a right to H. H. Hay, of Portland, who uses the same on the bottles containing the medicine.
8. That they have been in the practice of preparing the medicine, under the recipe bought of Moses P. Atwood, for the period of fourteen years, and that they have spent large sums of money in advertising the medicine, and in creating a market for the same.
Proofs were taken on both sides, and the evidence is voluminous and somewhat conflicting. Any discussion of the legal questions arising in the case would not be of much advantage until the facts are ascertained, which will be best accomplished by distinct findings.
Pursuant to that view, the court finds as follows:
1. That Moses Atwood, Georgetown, Mass., commenced preparing the medicine in question nearly forty years ago; that for a time the formula of the ingredients was a secret, and that he soon began to designate the preparation as his medicine more frequently than otherwise, designating it as Moses Atwood’s Bitters or as Moses Atwood’s Jaundice Bitters, and sometimes as Atwood’s Vegetable Jaundice Bitters. There is no direct proof that he ever adopted any distinct trade-mark, but the evidence of use is such as to warrant the conclusion that he considered the latter designation as representing the article which he manufactured and put up for sale. Por a time no other person had any interest in the business, and throughout all that period he put the article up in round, smooth bottles without panels or raised words or letters of any kind. Others subsequently acquired an interest in the business with him, among whom were his brother and L. H. Bateman, and the person who subsequently joined with him in the conveyance to Carter and Dodge. His son, Moses P. Atwood, had worked with him and Bateman at Georgetown in preparing the medicine under the recipe, and knew the ingredients of which it was compounded. He, the son, went to work with Bateman in 1860, and he states that they used-.a fluted bottle containing the name of the medicine and that of his father, and his place of residence blown into it.
2. That large rights in respect to the business remained in Moses Atwood, notwithstanding the interest in the same acquired by others; that Jan. 1, 1848, he .entered into a [614]*614written contract with Moses Carter, by which he sold to the latter bills against local agents in many places in Massachusetts, Rhode Island, Connecticut and New Tort, and the right to sell the medicine in those’ places, under the terms and conditions following: that he, the manufacturer, should not sell the medicine in those places so long as the other party supplied customers there; that he, the proprietor, agreed to make the bitters during ten years for seventeen dollars per barrel, to be delivered in the state where the same were made, three-quarters of the money to be advanced by the other contracting party.
3. Carter and Benjamin S. Dodge, Feb. 2, 1852, formed a copartnership, which, of course, consisted of two parts; but they subsequently took into the firm C. L. Carter, and by interlineations made the articles consist of three parts. They formed the copartnership for making and vending Atwood’s vegetable medicines and essences. Enough appears to afford an inference that a prior agreement between Moses Carter and Dodge of the one part, and Moses Atwood of the other, liad been made, as the record shows that Atwood and Bingham and Carter and Dodge, Sept. 29, 1852, entered into a contract to settle doubts and supply omissions in the supposed antecedent agreement, which was not introduced in evidence.
4. By the contract introduced, Moses Atwood and nis partner conveyed to Carter & Dodge the right to use said Atwood’s name on the labels and circulars, and to manufacture and sell “Atwood’s Vegetable Jaundice Bitters,” and certain other articles, on the ground hereinafter described, and not to sell by themselves or their agents in any other portion of the world, or sell to others to sell, except on the ground hereinafter described. Massachusetts is named, with numerous excepted towns and parts of towns. Towns and places are also excepted from New York. Seven towns are also excepted from New Hampshire; and all of the state of Maine, except the towns of Kittery, South Berwick and Lebanon. Other exceptions are made in the same instrument, not necessary to be noticed in this investigation. Attempt was made to prove by parol the prior agreement referred to in the contract, and with that view reference was made in argument to the cross-examination of Luther F. Carter, who states that there were papers executed to Carter & Dodge, giving them the right to manufacture the bitters, using Moses Atwood’s name, -but that he knew nothing about the bottle. When asked if those papers came into his possession he answered that he didn’t know that they ever did. He was then asked, “If they were ever in your hands, to whom did you deliver them?” and his answer was, “If they ,were ever in my hands I delivered them to Éli B. Johnson,” the record showing that the person named was the agent of the complainants. Taken as a whole, the court is of the opinion that the evidence was not sufficient to admit parol testimony of the contents of the instrument, nor would it benefit the complainants if the rule was otherwise, as the witness states that he does not know that the paper or papers conveyed any thing more to Carter & Dodge than the right to put up the medicine and use Atwood’s name; nor does the record contain any evidence tending to show that the original proprietor ever gave them the right to sell the medicines in any of the places excepted out of the contract introduced in evidence.
5. That parol evidence was introduced, tending to show that Carter & Dodge owned, at the time of their dissolution of copartnership, all the right in Atwood’s Bitters to manufacture and sell the same, except what Atwood had reserved; but there is no evidence that he ever conveyed to them any right to put up or sell the same in the places reserved, nor is there any evidence tending to show how, if ever, he acquired the interest in the same at one time held by his brother aud Bateman.
6. Suggestions were made in argument that Moses Atwood, in the year 1855, conveyed to Carter & Dodge, or Carter, Dodge & Co., his entire interest in the business, except his right to sell the medicine beyond Illinois. What a party does not own of course he cannot sell and that is a sufficient answer to the proposition, so far as respects the interests which had become vested in others; but the supposed sale might apply to some of the excepted places, not to all, as the same witness admits that Carter & Dodge did not own what Mr. Atwood had reserved, but he says that he once saw the agreement last referred to, and, when asked if he had made search for it, stated that he had made diligent search for it among his father’s old papers. It was about the time that Carter, Dodge, & Co. brought the suit against Bateman that he saw the paper, and he says he has not seen it since that time. According to his statement the paper was from Moses Atwood to Carter, Dodge, & Co. Carter & Dodge sued Bateman for putting up and selling the medicine and using the trade-mark, and he prevailed in the suit; and yet no search was made among the papers of Mr. Dodge. For aught that appears to the contrary, it may be among his papers, or in the hands of the attorneys in that suit, or in the files of the clerk's office.
Two objections are taken to the evidence, both of which may be sustained: First. That sufficient search is not shown to admit it. Second. That, if it is admitted, it has no tendency to show that the conveyance included Maine, or any other of the excepted places; nor does it appear that the grantor reacquired the interests previously vested In other persons. Localities almost without num • ber were excepted out of the general grant, and the uncontradicted proof is that the original proprietor made reservations in favor cf his father, Levi Atwood, and his brother, Levi [615]*615F. Atwood, of Maine and part of New Hampshire.
7. Viewed in the light of these suggestions, the court finds that Carter & Dodge never acquired the right to put up and sell the medicine in Maine, or in any of the places excepted out of the grant from the original proprietor, nor did they ever acquire the right or title to any of the same reservations in favor of other parties. Trade-marks are an entirety, and are incapable of exclusive use at different places by more than one independent proprietor, for the reason that the party seeking redress, in order to establish an exclusive right -to the trade-mark, must show that he had an exclusive right in tne commodity to which it is attached. Upton, Trade-Marks, 24; Canham v. Jones, 2 Ves. & B. 218. Throughout the largest portion of the period since 1842, Bateman, or his son, who succeeded him, put up and sold Atwood’s Bitters in the same town with the original proprietor, and the proofs show that he put The medicine up in half pint glass bottles, with the words, “Atwood’s Jaundice Bitters, Moses Atwood, Georgetown, Mass.,” blown upon the bottles; that when the proprietor removed, in 1855, he left with Bateman his original recipe for the manufacture of Atwood’s Bitters, with all the medicines which he manufactured and sold. Little or nothing was made in the business during the lifetime of Bateman; and when he died, his son succeeded to and continued in the business until the heirs transferred the same to the complainants. For a few years, Garter & Dodge put up and sold the medicine, in accordance with the course pursued by the original proprietor, when they took into the firm the son of the senior partner, C. L. Carter, and continued to transact the business under the name of Carter. Dodge &. Co, two or three years longer. When they dissolved and Dodge went out, the new firm, called Carter & Son, consisting of Moses Carter and C. L. Carter, took control of the business, and they continued the same for about five years. Subsequently, another son of the senior partner joined the firm, and they continued the business for two or three years under the firm name of Carter & Sons. Lastly, the father and the elder son went out, and Luther F. Carter took the firm name of Carter & Son, and continued the business until he sold to the complainants. After Carter & Dodge dissolved in 1S55, Dodge went to Rowley, and put up and sold the medicine there' for rive years, using the Atwood labels. On the 4th of September, 1807, he sold and conveyed the right to manufacture and sell Atwood’s Bitters to William B. Dorman for the term of five years from the date of the agreement, with the right to use the trade-marks he had previously used in the sale of the same. Before that period expired, the same party sold the same right to Noyes & Manning, now of Mystic, Conn., with authority to use the same labels.
8. That Carter & Son had two kinds of labels used on the bottles which they put Tip for sale. On the top of one of the labels the words “Carter’s are the only genuine” were printed, and below the directions, the words “Manufactured by M. Carter & Son, successors to Moses Atwood, Georgetown, Mass.,” were also printed. At the bottom of the label were also printed the words “Caution.— Observe that our name is blown in the bottle and on the revenue stamp. None others are genuine.” The label also bore the words “Atwood’s Vegetable Physical Jaundice Bitters.” Two kinds of bitters were put up at their place. One kind, under the label described, which was the genuine “Atwood’s Vegetable Physical Jaundice Bitters,” sold in the market, at wholesale, for twenty-seven dollars per gross; the other kind was an inferior article, an imitation of the genuine, sold in the market at fifteen dollars per gross, bearing the genuine original label of Atwood’s Bitters, with the “e” left out in the word “the” preceding the words United States. Carter’s traveling agents never sold any but the genuine article, the imitation being disposed of by Carter alone. In most instances the two kinds were retailed at the same price; but when both kinds were known, the genuine brought a higher price.
9. That Bateman had the original recipe, and that Moses F. Atwood, the son of the original proprietor, when in the employment of Bateman as a selling agent, sold the recipe for compounding and preparing the Atwood Bitters in the state of Maine to Nathan IVood, in 1861. When asked whether the conveyance was in writing, he said it was, and that each party had a copy, and that he sold to the respondent the right to manufacture the bitters and sell the same in the State of Maine and elsewhere. Proof that the grantor had authority from the actual proprietor to execute the conveyance is not shown in the record; but it is shown that the purchaser, with his partner, has continued to prepare, put up, and sell the medicine, from the date of the purchase of the recipe to the date of the bill of complaint, without hindrance or interruption, with' the exception of the two instances mentioned in the second answer, since the organization of the complainant corporation. None of the grantors of the complainants ever disputed their right to compound, put up, and sell the bitters in auestion, nor is there any evidence tending to show that the bitters which they sold were not the genuine Atwood Bitters. Their grantor possessed the genuine recipe, and the proofs are full to the point that it was the genuine recipe which he sold to the respondent, Nathan Wood. Beyond all doubt the respondent, Nathan Wood, acquired the recipe, which, not being the subject of a patent, might lawfully be used by any one who possessed the secret; and it is equally certain that he supposed that he had acquired the right to use the labels, as he pur[616]*616chased the right to use the same of the son of the original proprietor, and of the selling agent of Bateman, whose title to put up the medicine and use the labels was subsequently established by judicial determination.
[The case was taken by the complainants, on appeal, to the supreme court, where, Justice Field delivering the opinion, the decree of the circuit court dismissing the bill was affirmed. 108 U. S. 213, 2 Sup. Ct. 436.]
10. Unlike what is usual in controversies respecting trade-marks the complainants in this case, instead of using a trade-mark of their own adoption, allege and attempt to prove that the trade-mark in question was adopted by the original proprietor of the medicine, and that they have acquired the title to the same by certain mesne conveyances set forth in the record, and the court finds upon that subject as follows: 1. That they, or their predecessors, Jan. 1, 1875, acquired, by assignment, whatever right in the same belonged to the heirs and representatives of L. H. Bateman. 2. Also, March 18, in the same year, whatever right belonged to the firm of Noyes & Manning. 3. Also, March 30, in the same year, whatever right belonged .to Benjamin C. Dodge. 4. Also, March 30, in the same year, whatever right belonged to William B. Dorman. 5. Also, April 12 and 19, in the same year, whatever right belonged to the Carters in the said trade-mark.
None of these instruments of conveyance, however, convey, or profess to convey, any greater rights to the complainants than those which were previously held by Carter & Dodge; and it is clear that Carter & Dodge never acquired from the original proprietor any right to put up or sell the medicine in Maine, or to use the labels of the original proprietor in that state, out of the three towns specified in the written agreement, which constitutes the evidence of their title.
Nothing remains to be done in the case of much importance, except to state the conclusions of law and fact resulting from the findings of the court:
1. Examined in the light of the findings, as the ease must be, it is clear to a demonstration that the complainants have no exclusive right to put up and sell the medicine, nor any exclusive right or title to the labels, which belonged to the original proprietor.
2. That all they claim in respect either to tiie medicine or the labels is the right to the same which was held by Carter & Dodge, who never possessed the right to put up the medicine or to use the labels in any part of Maine, except the three towns named in the said written agreement.
3. That the rights of certain of the assignors of the complainants, if any they ever had, were forfeited long before the supposed transfer under which the complainants claim, by the use of the trade-mark as a means of misrepresentation and deception to the public, by putting up a spurious. article, and using the genuine trade-mark to promote the sale of the spurious article. Misrepresentation and deceit of the kind divest the guilty party of all title to the same, and it follows that a party who has forfeited his property in the same cannot convey any title to another. Phalon v. Wright, Cox, Trade Mark Cas. 311, 5 Phila. 464; Perry v. Truefitt, 6 Beav. 66; Pidding v. How, 8 Sim. 477; Hobbs v. Francais, 19 How. Prac. 567; Partridge v. Menck, 1 How. Cas. 547; Fetridge v. Wells, 4 Abb. Prac. 144; Flavell v. Harrison, 19 Eng. Law & Eq. 15. Equity will not decree for an account of past gains and profits where there has been laches in bringing the suit and long acquiescence in the use of the trade-mark by others, and especially not where the acquiescence covers a period of fourteen years. McLean v. Fleming, 96 U. S. 245; Harrison v. Taylor, 11 Jur. (N. S.) 408; Moet v. Couston, 10 Law T. (N. S.) 395; Edelsten v. Edelsten, 1 De Gex. J. & S. 185; Estcourt v. Estcourt Hop Essence Co., 10 Ch. App, 276; [Molt v. Couston, 33 Beav. 580.] 3
4. That the assignors of the complainants forfeited all their property, if any, in the trade-mark belonging to the original proprietor, by a disregard, among themselves, of their several allotted districts, after the grant or license from the original proprietor, by trespassing upon each other, and misuse of the trade-mark.
5. That the grantees or licensees of the original proprietor, and their successors, forfeited the right to the original trade-mark of their grantor or licensor by the voluntary relinquishment of the bottle, label, and directions, which he used before the transfer, and by the adoption of new and different labels, &c., of their own substitution, one or more of whom put up and sold a spurious article of medicine under the genuine label, and used a different label of his own invention on bottles containing the genuine medicine. Cases arise' where the title is complete, when a party, though not entitled to a decree for an account, may still be entitled to a decree to prevent future infringements; but the difficulty in the way of the complainants in this case is incurable, as the evidence shows that the respondents have the genuine recipe, which is not protected by any patent, and the complainants have not any exclusive right to the use of the label, and no right at all to the use of it in the state of Maine.
Bill of complaint dismissed, with costs.