Home/Supreme Court of Louisiana/Thomas H. Handy & Co. v. Commander

Thomas H. Handy & Co. v. Commander

22 So. 230, 49 La. Ann. 1119, 1897 La. LEXIS 401
CourtSupreme Court of Louisiana
DecidedMay 10, 1897
DocketNo. 12,442
StatusPublished
Cited by13 cases

This text of 22 So. 230 (Thomas H. Handy & Co. v. Commander) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas H. Handy & Co. v. Commander, 22 So. 230, 49 La. Ann. 1119, 1897 La. LEXIS 401 (La. 1897).

Opinion

The opinion of the court was delivered by

Watkins, J.

Plaintiffs claiming to be the sole and exclusive owners of a certain trade mark which they adopted in 1893, and have since used to distinguish their Aromatic Cocktail Bitters, and to which they have at all times had the exclusive right of use; and alleging that the defendant has been guilty of an infringement thereof, prayed for a writ of injunction against him and his agents and employees from further using or attempting to use same, directly or indirectly, or any trade mark of similar design or device. They also alleged a resulting injury from said infringement, and prayed for compensatory damages in the sum of two thousand five hundred dollars.

On the trial there was judgment pronounced in favor of the plaintiff for four hundred and fifty dollars damages, perpetuating the injunction, and the defendant prosecutes this appeal, after making an unsuccessful effort to obtain a new trial.

The following extract from the brief of the plaintiffs’ counsel very accurately states their side of the case, and we have adopted it for convenience of statement, to-wit:

“ Thos. H. Handy was carrying on a wine and liquor business in this city, at Nos. 12 and 14 Royal street, for many years prior to 1874, and in connection therewith manufactured and sold an ‘ Aromatic Cocktail Bitters,’ according to a formula which he had purchased from Peyehaud, who remained in Handy’s employ up to the time of his death in 1876. About that time Handy became involved, financially, and required fresh capital for said business, obtained the same from William MeQuoid — who became the real principal of the house — with Thos. H. Handy as his agent, and, thereafter, the business was carried on, at the same place, under the style of ‘Thos. H. Handy, Agent;’ Handy retaining his interest therein until his death, when a new jfirm was entered into, under the style of Thos. H. Handy & Co., composed.of the said William MeQuoid, Thos. H. Handy’s widow, and two clerks who had been [1121]*1121employed in the house when the same was conducted in the name of ‘ Thos. H. Handy, Agent.’
“During all of these years the aforesaid ‘Aromatic Cocktail Bitters’ compounded under the ‘ formula ’ which Handy had purchased from Peychaud, was manufactured and sold by Thos. H. Handy, Thos. H. Handy, Agent, and Thos. H. Handy & Oo., under the ‘TRADEMARK,’ which is declared on by plaintiffs in the above entitled suit.
“Defendant, 'Commander, was-in plaintiff’s employ for several years, and while his services were thus engaged and paid for by plaintiffs, he learned the aforesaid ‘ formula ’ for their ‘ Aromatic Cocktail Bitters.’ Commander left plaintiffs’ employ in 1898, and soon afterward set up a rival establishment for the manufacture and sale of their aforesaid ‘Aromatic Cocktail Bitters,’ and put the same on the market, through solicitors and canvassers, under Handy & Co.’s ‘ trade mark,’ and thereby did all in his power to deceive the public into the belief that he was selling plaintiffs’ ‘ Aromatic Cocktail Bitters.’ In size, style, color, lettering and execution, and word for word, not a point of difference exists between the ‘ trade mark ’ of Handy & Co. and the ‘ trade mark ’ thus put forth by Commander, except that the latter is styled ‘ Commander’s Bitters,’ while the former is styled ‘ Handy’s Bitters.’ An inspection of the two ‘ trade marks,’ which are attached to page 15}£ of the transcript of appeal, will show their exact identity with the above exceptions, and will conclusively establish defendant’s palpable and flagrant infringement of plaintiffs’ ‘ trade mark.’ ”

Plaintiffs complain that on account of the aforesaid infringement of their trade mark they found themselves competing with the defendant, as a seller of their own goods, under what appeared, on a casual examination, to be their own trade mark; and which he had thus wrongfully appropriated for the purpose of inducing the belief that the goods he was selling were the aromatic cocktail bitters.

That in a short time they came to realize that the defendant was, by this means, depriving them of a very large part of their trade, as their sales had become reduced from a total of eighty-one cases sold in December, 1893, to a total of twelve cases sold in August, 1894.

The defence was a.general denial.

The defendant’s counsel frankly admits in his brief that “ the evidence proves beyond the peradventure of a doubt that the Peychaud Bitters is the leading and recognized standard bitters in this market, [1122]*1122and that the Peyehaud Bitters, Handy Bitters and Commander Bitters are one and the same thing.”

That the formula used is not patented and not proprietary, and that the reputation of the concoction was made in the name of the Peyehaud Bitters — originally prepared by a man of that name.

He further states that said preparation was made and for a long time sold as the Peyehaud Bitters under a label containing the following legend, viz.:

“ Peychaud’s American Aromatic Bitter Cordial. This cordial is the most palatable and flavorous ever yet prepared from aromatic and bitter ingredients, eminently calculated to open the appetite and invigorate the functions of the stomach, and thereby prevent dyspepsia. Dose for adults one to two tablespoonsful before meals in a little sugar and water, or in a little sherry, madeira or brandy if preferred. For children, from one to three teaspoonsful, according to age. Mixed with anisette and a little water it makes a most pleasant stomachic.”

That under this label it attained a great and lasting popularity with the public.

He then represents that Thos. H. Handy became acquainted with the formula, and for several years made the same preparation, which he sold under the name of Handy’s Aromatic Cocktail Bitters, with a legend copied almost verbatim from that employed on the Peyehaud Bitters, to-wit:

“ Handy’s Aromatic Cocktail Bitters. These bitters are the most palatable and flavorous ever sold prepared from aromatic and bitter ingredients. It stimulates the appetite and invigorates the functions, thereby preventing dyspepsia. A teaspoonful to be taken either with sherry or madeira, or if preferred, with a little anisette or brandy, with or without water, which thus makes a very light and pleasant tonic.”

He then alleges that the bitters thus labeled, Thomas H. Handy sold in competition with Peyehaud until the time of his death.

Then follows the following important admission, viz.:

“ Anthony Commander, the defendant in this suit, who also knew the formula by which the ‘ Peyehaud Bitters ’ were made, determined to go into the business of manufacturing and selling bitters on this market in competition with the ‘ Peyehaud Bitters,’ and began selling his product in April, 1894, under a label similar in wording to that of the Handy people, but stating clearly thereon that it was [1123]*1123* Commander’s Aromatic Cocktail Bitters,’ prepared by A. Commander, sole proprietor, and never sought to induce any one to believe that he was selling Handy’s bitters, but sold them on their own merits, as his own bitters, claiming and stating to the trade that they were iully as good as the ‘ Peychaud Bitters; ’ and much cheaper.

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Cite This Page — Counsel Stack

Bluebook (online)
22 So. 230, 49 La. Ann. 1119, 1897 La. LEXIS 401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-h-handy-co-v-commander-la-1897.