Page:Federal Reporter, 1st Series, Volume 8.djvu/50

36 FKDSBAL. BEFOBTBB. �to designate the fact that the whisky contained in the packages no marked or spoken of in advertisementa, circulars, signs, etc., on which the mark was burned or printed, was made at the distillery so degignated; and that that was done beoause the distillery, or its predecessor on the same site, had acquired a reputation in connection with the manufacture of whisky which was sufficient to reoommend any article made at the same place. �Undoubtedly the inference, from the plain meaning of the words themselves, supports, strongly the claim on the part of the de- fendants. ., �The complainant's brand or mark, as claimed and used by hira, is " Old Oscar Pepper Distillery, Woodford Co., Ky.," James E. Pepper, proprietor; the words "hand-made sour mash " describe the quality of the whisky ; and as to the rest, the plain and unequivocal mean- ing is that it is the product of the "Old Oscar Pepper Distillery," of which James E. Pepper is proprietor. �The complainant in his testimony endeavOrs to explain his use of the word "distillery" in this connection, so as to make its use consist- ent with his claim that the words "Old Oscar Pepper" were in- tended to designate the whisky and not the distillery. He says: "In branding the ends of my barrels, I put the word ' distillery ' to show that the ' Old Oscar Pepper ' whisky was a straight whisky made by me, and at my own distillery, and not a compounded whisky ; and the use of the word ' distillery,' on the heads of the barrels following the trade-mark, indicated a, straight whisky as distinguished from a compounded whisky." �But the explanation does not seem sufficient. The use of the word "distillery" does, indeed, seem to advertise the fact that the whisky is distilled, and not rectified, but it does so by designating the spirits contained in the package as the product, not merely of a distillery, but of the particular distillery known as the "Old Oscar Pepper Dis- tillery," of which James B. Pepper is proprietor. �It is true that Beecher, one of the iirm of Ives, Beecher & Co., the merchants who sold the complainant's whisky in New York, testihes that the whisky acquired its reputation under the name of "Old Oscar Pepper" or "0. 0. P." whisky, and known by that name, and in- quired after and bought and sold by that designation. He says my firm buy whisky under the name of "Old Oscar Pepper." But he immediately explains that "we buy as ' Old Oscar Pepper,,' whisky to be made at the distillery where James E. Pepper first made the whisky known to the trade by that name." (Answer to the twenty- ��� �