Page:Federal Reporter, 1st Series, Volume 1.djvu/699

CAEROLL ». EBTHBILBH. 691 �Bo understands,) -wliy does he adopt the designation by which this tobacco is f amiliarly known, and persist in using it ? �The dominating characteristic of the plaintiff's trade-mark is the name "Lone Jack." His tobacco has corne to be known and described by this name, throughout the country, to such an extent that the accompanying device has ceased to be im- portant, if it ever was so, — doubtless rarely observed, and sHghtly remembered. At home and abroad, to the trade and the public, it is familiarly known as "Lone Jack," and is thus designated as the plaintiff's manufacture by purchasers and sellers. �The defendant's application of this name to his smoking tobacco is an adoption and use of the essential part of the plaintiff's trade-inark. Surrounding it with a different device signifies nothing to the public, who attach no importance to the device of the plaintiff. The defendant's name upon the cigarettes, if recognized, (and it would not be without close inspection,) would not inform the public that the tobacco is not of the plaintiff's manufacture. That the defendant's act is calculated to mislead can hardly be doubted ; that it has misled, the plaintiff's afîidavits, we think, show ; and the in- ference that the defendant supposed it would mislead, and intended it should, cannot well be avoided. Why otherwise did he adopt this particular name? He knew it to be the recognized designation of the plaintiff's tobacco, which had beeome popular with consumers and the trade. Did he not expect the public to be influenced thereby and his business increased ? An affirmative answer cannot weli be avoided. If he did not, however, the injunction will do him no harm, for he has not yet had time to establish a reputation of bis own under this name. �Whether the plaintiff commenced putting up his tobacco- in the form of cigarettes before the defendant applied the designation "Lone Jack" to his cigarettes need not be consid- ered at this time. �The law involved is, we believe, well settled, and is so fully stated in every aspect suggested by the learned counsel for the defendant in McLane v. Fleming, 6 Otto, 2e5, and Singer ��� �