Page:Federal Reporter, 1st Series, Volume 10.djvu/854

842 FKDEBAL REPORTER. �in the plaintiiis', thoiigh of a different ciiaracter. There is a narro-w space of white in the defendants' all around the lower parallelogram, and the aide Unes of white are carried up on eaoh side of the .top of the shield, and then continue down around the outer edges of the shield, differing in these respects from the plaintiffs'. The words beginning with "one wineglassful," to the end, at "stimulant," are formed in a label of gpld letters, printed on a bronze ground, which is on another face of the plaintiffs' bottle. �It is shown that there are no such persona as Clayton & Eussell, and that the defendants' label was prepared from the plaintiffs' by intentionally making the parts in it which are like corresponding parts in the plaintiffs', to be so like. It is plain that it is a copy from the plaintiffs' by design. Variations are made of such a character as to be cabable of discernment and description. But the general effect to the eye of an ordinarj. person, acquainted with the plaintiffs' bot- tle and label, and never having seen the defendants' label, and not expecting to see it, must be, on seeing the defendants', to be misled into thinking it is what he bas known as the plaintiffs'. The size, color, and shape of the bottle,— the four lines of letters at the top of the label beiag, as to the three. lower ones, identical, and, as to the upper one, differing only in the name, — the general effect of the horse and his rider, the size and shape and color of the shield, the white letters in it, and their size and arrangement in lines eontract- ing in length towards the lower point of the shield, the whole in blaok on a white ground, and the border, give an affirmative resemblance calculated to deceive an ordinary observer and purchaser, having no cause to use more than ordinary caution, and make him believe he hasbefore him the same thing which he bas before seen on the plain- tiffs' bottle and expects to find on the bottle he is looking at. The differences which he would see on having his attention called to them are not -of such a character- as to overcome the resemblances to the eye of a person expecting to see only the plaintiffs' bottle and label, and having no knowledge of another. The testimony to the above effect is of great strength. �The plaintiffs have no exclusive right to make the bitters.,, Their trade-mark is not in the words "Celebrated Stomach Bitters," nor have they any exclusive right to a bottle of the size, shape,;and.color of the one which they, use.. But the entire style of theiif bottle and label, of^whiohthose words f orna a pait, is, in connectionv^ith the ,otl^er,particu,lars above mentioned,in which ^he defendants' bottle and label are like theirs, the mark of their trade. Williains v. Johnson, 2 ��� �