We are of opinion that the decree below must be affirmed. The material allegations of the bill are not sustained by the evidence, and the one which presents the entire foundation for the claim of relief is disproved by the exhibit which the complainants append to their bill. After alleging that complainants had adopted as their trade-mark the word 'Tycoon,' and stamped it upon packages of a particular kind of tea manufactured and imported by themselves alone into the American market in 1879, and that the said word 'Tycoon,' having never before been adopted as a trade-mark, had become known to the trade as exclusively designating a particular kind of tea dealt in by the complainants, the bill states that, for the purpose of obtaining protection for their exclusive right to the said word 'Tycoon' as a trade-mark, they deposited it, as above described, in the patent-office at Washington, and that in 1881 the same was registered and recorded by the commissioner of patents of the United States, and a certificate was issued therefor, securing to the complainants protection for the said trade-mark. The exhibits A and B, appended to the bill, and other exhibits attached to Corbin's deposition, show that the trade-mark adopted by the complai ants, deposited and registered in the patent-office, is not the word 'Tycoon,' as stated in the bill, but a transverse, diamond-shaped symbol, inclosing the word 'The' at the top and 'Tea' at the bottom, between which, lengthwise the diamond, is the word 'Tycoon.' A fac simile is as follows:
The claim of the complainants, filed in the patent-office for the registration of the trade-mark in question, is in these words: 'Our trade-mark consists of the letters and words and arbitrary symbols, 'The Tycoon Tea, I., C. & M., C., Japan Tea,' ornamental scroll border, transverse diamond shape. * * * The letters or words, 'I., C. & M., C., Japan Tea,' may be omitted, or they may be partly omitted and partly changed as to their position within the square, without materially altering the character of our trade-mark, the essential features of which are the symbol of a diamond and the arbitrarily selected word 'Tycoon." It is not pretended that this combination, claimed and registered as the trade-mark of complainants, has ever been used by the defendants either in the identical form, or in a form having such resemblance thereto as might be calculated to deceive. A comparison of the label of defendants with that of the complainants, as given in the exhibit to the bill, shows many striking points of difference, and but few, if any, points of similarity, except that the word 'Tycoon' is found in both. In the complainant's label, the diamond figure, the words, 'The Tycoon Tea,' 'Choicest,' and 'Spring Leaf,' are printed in blue ink, and the other words are printed in black ink, all in different kinds of ornamental letters,-the whole surrounded by an ornamental, black scroll border. The defendant's label is water-marked in red and pink colors, surrounded by a heavy blue border with black decorations. The words are printed in various styles of letters of different colors; the words, 'Tycoon Chop,' for instance, being in large, white letters with red facings, on a solid black ground, and 'Japan Tea' in large black letters, some of which are plain and some ornamental. On the complainants' label the proprietorship of the tea is indicated by the letters, 'I., C. & M.,' representing Ingraham, Corbin & May, the predecessors of the present firm, while on the defendants' label the name of their firm, and their place of business, appear prominently near the bottom of it. These labels are so entirely dissimilar that it is difficult to perceive how they could be mistaken the one for the other. A mere glance is sufficient to distinguish them. There are certainly no more points of similarity between them than are to be found ordinarily between tea labels or facings; and, were it not for the fact that the word 'Tycoon' is found in both of them, there would be no semblance of a case of infringement. With respect to the word 'Tycoon,' the evidence shows beyond question that it has been used as a name or brand for Japan tea for many years. Invoices of 'Tycoon tea' were received at the custom-house in San Francisco as early as May 15, 1873, as shown by a copy of the official records of that office filed in this case; and the evidence of dealers and merchants of California is all to the effect that the word was in common use as a brand for Japan tea for several years prior to that date. It is unnecessary to go into this evidence in detail; but it is conclusive as to the long use of the word prior to the alleged adoption of it as a part of the trade-mark of the complainants. The authorities cited by complainants' counsel to show that the prior use of a word as a trade-mark by another party, who had abandoned it, is not sufficient to debar the present owner of it from protection, do not apply this case. At the time complainants claim to have adopted the word 'Tycoon' as their trade-mark for the particular species of tea dealt in by them, it was not an abandoned trade-mark, previously used by some other person or firm, to designate a particular quality of tea, but it was, nd had been for many years, in general and common use, as a term descriptive of a class of teas introduced into the American market,-a term which all men engaged in the tea business had an equal right to use, and which belonged to no one individual, either as a trade-mark or a trade label. It belonged to the public, as the common property of the trade, and therefore was not subject to appropriation by any one person. The following language, used in Manufacturing Co. v. Spear, 2 Sandf. 599, quoted with approval by this court in Canal Co. v. Clark, 13 Wall. 311, 324, is applicable to the claim of the complainant in this case: 'He has no right to appropriate a sign, or a symbol, [or a name,] which, from the nature of the fact which it is used to signify, others may employ with equal truth, and therefore have an equal right to employ for the same purpose.' See, also, Manufacturing Co. v. Rubber Co., 128 U.S. 598, 9 Sup. Ct. Rep. 166; Tobacco Co. v. Finzer, 128 U.S. 182, 9 Sup. Ct. Rep. 60; Stachelberg v. Ponce, 128 U.S. 686, 9 Sup. Ct. Rep. 200; Menendez v. Holt, 128 U.S. 514, 9 Sup. Ct. Rep. 143. Even conceding that the complainants may claim a trade-mark for the combination of the diamond and the words inclosed in it, as described in their application to the patent-office, there was, upon the authorities above cited, clearly no trade-mark in the word 'Tycoon,' considered by itself. The decree of the court below dismissing the bill should be, and it hereby is, affirmed.
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