Page:Federal Reporter, 1st Series, Volume 8.djvu/46

82 FEDSBAL BEPOBTES. �and fraudulent design to procure the custom and trade of persons ■who are or have been in the habit of buying, vending, or using the genuine whisky made by the complainant, and of illegally and fraud- ulently promoting the introduction and sale of the defendants' own whisky, under the cover and reputation of the complainant's trade- mark, and of inducing unsuspecting persons to purchase the whiskies of defendants as and for the genuine "Old Oscar Pepper" whisky, manufactured by the complainant. It is charged, also, that with like intent the defendants are using the same device and trade-mark upon their letter-heads, and business cards, and other papers and advertisements, and upon packages containing their whisky. It is also charged that this conduct of the defendants is injurious to the complainant in the sale of his whisky, and in the profits thereof, and that, by reason of the inferior quality of the whisky sold by defend- ants under such trade-mark, the reputation of the complainant's whisky is greatly prejudiced and injured in the markets of the coun- try, and a fraud and deception practiced upon the public, inany of whom are induced to purchase the defendants' whisky, believing it to be the manufacture of the complainant. �The bill accordingly prays for an injunction and an account. �The defendants filed an answer in which they admit that they have been and are engaged in manufacturing and selling whisky, their distillery being in Woodford county, Kentucky, and long known and designated as the "Old Osoar Pepper Distillery," They deny that the complainant is the originator or owner of the trade-mark or brand for whisky made by him, as claimed, and deny that the words "Old Oscar Pepper," or the abbreviation of them, by the letters "0. 0. P.," have ever been used as an arbitrary or fanciful title or trade-mark for whisky, or that they were ever so used by the com- plainant, and allege that they were never used by him except in con- nection with the word "distillery," and then only for the purpose of showing that the wh'sky in reference to which they were so used was manufactured at and was the product of the Old Oscar Pepper Distillery. The defendants claim that the use of the same by the complainant as a brand for their whisky, manufactured elsewhere, wonld be a fraud on the public, as well as on the defendants. They say that several years since the complainant became the owner of 33 acres of land in Woodford county, Kentucky, known as the land used by Oscar Pepper for distillery purposes, upon which there was a distillery, and machinery, warehouse, and other improvements ; that said distillery, during the life-time of Oscar Pepper, the father ��� �