Page:Federal Reporter, 1st Series, Volume 1.djvu/697

CAREOLIi V. EETHBILEB. 689 �by the peculiar distinctive designation of "Lone Jack," and vfas bought and Bold under that name; that respondent, intending wrongfully to usurp complainant's reputation, and to deceive the public into supposing that they were buying complainant's tobacco, colorably imitated complainant's trade- mark, and in July, 1879, began to af&x to goods of sub- stantially the same descriptive properties as complainant's the word-symbol "Lone Jack," and to sell smoking tobacco "wrapped in papers and bearing a label containing, as its most prominent characteristic, the $aid word-symbol, and that the public had been deceived thereby into buying respond- ent's tobacco, supposing it to have been manufactured by complainant. The bill prayed foraninjunction and account. �The answer denied that complainant had any proprietary or exclusive interest in the word-symbol "Lone Jack" by itself, and alleged that complainant's trade-mark only gave him the right to use the words "Lone Jack" in qonneetion ■with the words "The Celebrated" above the bust of a man smoking a pipe, and with the words on each side of said ^st, "Or seek no further, for better can't be found," and below said bust the words "Smoking tobacco, manufactured by John W. CarroU, Lynchburg, Virginia." It denied that complainant had ever applied said trade-mark to cigarettes, or to any other article than smoking tobacco, or that he had made or sold cigarettes by the name of "Lone Jack." It alleged that what is known by smokers and to the trade as smoking tobacco is a distinct article of merchandise froni cigarette tobacco, and cannot be used for the manufacture of cigarettes, and that cigarette tobacco paid a special tax to the United States government. It further alleged that re- spondent had, in May, 1879, adopted and was entitled to a trade-mark for cigarettes consisting of the words "Lone Jack" above and the word "Cigarettes" below the figure of the jack of spades, and the name "Ertheiler & Co., New York," below, and "The best" below ail; and that the sales of cigarettes under this trade-mark were the only sales by defendant ooia- plained of by plaintiff. The answer further denied that thew �T.l,no.9 — 44 ��� �