Home/Eighth Circuit/Richmond Remedies Co. v. Dr. Miles Medical Co.

Richmond Remedies Co. v. Dr. Miles Medical Co.

16 F.2d 598, 1926 U.S. App. LEXIS 3924
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 22, 1926
Docket7415
StatusPublished
Cited by9 cases

This text of 16 F.2d 598 (Richmond Remedies Co. v. Dr. Miles Medical Co.) 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
Richmond Remedies Co. v. Dr. Miles Medical Co., 16 F.2d 598, 1926 U.S. App. LEXIS 3924 (8th Cir. 1926).

Opinion

BOOTH, Circuit Judge.

Appellant, plaintiff below, brought suit for an injunction and damages on account of an alleged infringement of its trade-mark; also on account of alleged unfair competition in connection with the use of its trade-name. The suit was originally commenced in the state court of Jackson county, Mo., but was removed to the federal court on the ground of diversity of citizenship and the requisite amount involved.

Motion was made to dismiss the bill, on the ground that it failed to state facts sufficient to constitute a valid cause of action in equity against defendant. The motion was heard on the bill and the exhibits referred to therein. The motion was sustained, and, plaintiff refusing to further plead, decree was entered dismissing the bill.

The bill is somewhat inartistieally drawn, but the substance of its allegations is as follows: That in 1873 S. A. Richmond, living in St. Joseph, Mo., began the manufacture and sale of a medicine for diseases of the nerves and nervous system, called “Samaritan Nervine.” The manufacture and sale has been continued to the present time by Richmond or his successors, including plaintiff. That on March 26,1878, Richmond registered in the Patent Office at Washington, D. C., the words “Samaritan Nervine” as trade-mark, in connection with the figure of a man falling backward in a fit; that since 1873 said Richmond and his successors have used the words “Samaritan Nervine” as a trade-mark in connection with the medicine, and have carried on a successful business; that Richmond and his successors, including plaintiff, have advertised said medicine by having the words “Samaritan Nervine” printed in large capital letters on two sides of the carton containing the bottle in which the medicine is put up, and by having a label containing the same *600 words pasted on the bottle, and by having the word “Samaritan” blown in the glass bottle on one side and the word “Nervine” blown in on the opposite side; that plaintiff’s medicine has'been and is known by the public, not only by the name “Samaritan Nervine,” but also by the name “Nervine” .alone; that by long use the word “Nervine” acquired in the minds of the public a secondary meaning, viz. the particular medicine made and sold by plaintiff; that about the year 1919 the defendant began to infringe plaintiff’s trademark, and was guilty of unfair competition in invading plaintiff’s rights under its trade-name ; that defendant made and sold a medicine which it called “Nervine,” for diseases of the nerves and nervous system; that defendant used the word “Nervine” in large capital letters on the cartons containing the bottles in which the medicine was put up; that defendant also pasted on the bottles a label containing the same word, and had the same word blown into the bottles; that defendant on Aprü 26, 1921, registered in the United States Patent Office the word “Nervine” as a trade-mark, but that later, upon the complaint of plaintiff, this was canceled; that these acts of defendant constitute an invasion and violation of the rights of plaintiff in its trade-mark and trade-name; that by these acts of defendant consumers are misled and induced to buy defendant’s product, “Nervine,” thinking they are buying plaintiff’s “Samaritan Nervine”; that defendant’s product is inferior to plaintiff’s product; and that plaintiff has sustained loss and damage by reason of the acts of defendant.

The cartons of plaintiff and defendant respectively, referred to in the bill, are here reproduced:

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Bluebook (online)
16 F.2d 598, 1926 U.S. App. LEXIS 3924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richmond-remedies-co-v-dr-miles-medical-co-ca8-1926.