Seabury v. Grosvenor

21 F. Cas. 908, 14 Blatchf. 262, 53 How. Pr. 192, 1877 U.S. App. LEXIS 1917

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: June 16, 1877
• Status: Published

Opinion

BLATCHFORD, District Judge.

The evidence is clear that the plaintiffs were systematically and knowingly carrying on a fraudulent trade. Although they may have omitted the fraudulent and deceptive and untrue language irom their circulars before this suit was commenced, yet if they have any property in the trade-mark which they claim the title to, they acquired such property by the use. for a considerable time, of such language in the circulars which accompanied the articles they sold, and in respect of which the trade-mark is claimed. Such language was to the effect, that a celebrated chemist had recently discovered a vegetable principle of great value, and, prior to making it generally known, had introduced it into hospitals, and had generously extended its use to the most successful physicians; that the flattering and astonishing results which characterized its action at once stamped it as the most remarkable principle ever discovered; that the powerful remedy was named “Capcine”; and that it was used in plasters prepared by the plaintiffs, and called “Benson’s Capcine riasters.” A registered trade-mark is claimed in the word “Capcine.” Courts of equity refuse to interfere in behalf of persons who claim property in a trade-mark, acquired by advertising their wares under such representations as those above cited, if they are false. It is shown that there is no such article as capcine, known in chemistry or medicine, or otherwise. The authorities are clear, that, in a case of this description, a plaintiff loses his right to claim the assistance of a court of equity. Lee v. Haley, 5 App. Cas. 159; Leather Cloth Co. v. American Leather Cloth Co., 4 De Gex, J. & S. 142.

The motion for an injunction is denied.