Page:Federal Reporter, 1st Series, Volume 8.djvu/49

PEPPEB V. MBBOT. 35 �BIte aji entirely netr distillery/aBd manufactured whisky which he called by the name of "Old Oscar Pepper," aitd so itiarked aiid branded the packages, and thereby originated and adopted it as Mk trade-mark to identify and distinguish the whisky made by nith, and iit became well and favorably known as suchi He says that in the manufacture of his whisky he used neither the same distillery build- ing at which the "Orow" whisky wae manufactured, nor the identical spring of water which had been used in connection with it, but another spring in the same vicinity of the saine quality; all tho splings of water in the same geological formation throughout the counties of Woodford, Fayette, Bourbon, Harrison, and the blue-grass section of Kentucky being substantially alike in quality, and the whisky made from one indistinguishable from that made^ with equal care and skill and by the same process, at any other. �And the complainant insists that the name "Old Oscar Pepper" was never applied to the distillery premises until after he had adopted it as the name of whisky made by him, and then only as indicating the place where he made his "Old Oscar Pepper" whisky; and that it was not the name of the distillery which was applied to designate the whisky made there, but the name of the whisky which was applied to designate the distillery at which it was made, so far as it was ever 80 known or called. He charges that the use by the defendants of thewords "Old Oscar Pepper Distillery," as descriptive of thelocality, is a subterfuge and evasion, their real intent being to use the words as describing their make of whisky, and thereby wrongfully to use complainant's trade-mark and pirate his trade. �General replications perfect the issue arising both on the original and cross-bills, and the cause bas been submitted on final hearing upon the pleadings and proofs. �It is manifest that the controversy between the parties, in the first instance, is one of fact. �The construction of the complainant is, that the words " Old Oscar Pepper " and the abbreviation of them, " 0. 0. P.," constitute a brand or mark originally adopted by him to designate whisky as made by him, without reference to the place of manufacture; and that by use and recognition it has become associated in the minds of dealers and the public with the article manufactured by him, sd as to constitute its name in the trade, whereby to distinguish it from a similar article made by any and all others. �On the other hand, the defendants claim that the Wbrds in question were originally used, and their use subsequently continued, merely ��� �