Page:Federal Reporter, 1st Series, Volume 8.djvu/52

38 FSOBBAL BEFOBIBS. �were altogether unimportant, for the reason that the produot of equally good materials, made in the same geological region, in the best manner known to those engaged then in the manufacture, could not be distinguished from the favorite article known by the name of any particular distillery, Nevertheless, it remains quite certain, from the proof 8 in this case, that the oomplainant succeeded in establishing a market for his manufacture, upon the special belief of the public that it must be like that made by his father, because made at the same locallty and with all the advantages it was thought to confer. In other words, he sought and obtained for his own manufacture, by the use of the name of his fathor's distillery, the reputation estab- lished by Oscar Pepper for his own. �Oscar Pepper manufactured at his distillery for many years pre- vious to his death in 1865, probably as early as 1838, and the dis- tillery was known in the neighborhood, as some witnesses testify, as Oscar Pepper's distillery. This, indeed, would be most natural. Afterwards, the whisky distilled there under the management of James Crow became extensively and favorably known as "Old Crow" whisky, and the distillery acquired the name of the Old Crow Dis- tillei-y ; and that name was used after the death of Oscar Pepper, by successive lessees of the establishment, as a trade-mark to designate its production ; but during that period the name of Oscar Pepper, as formerly connected with it, appeared in the brands and marks used by Gaines, Berry & Co. while they were carrying it on. They styled themselves on business cards "Lessees of Oscar Pep- per's 'Old Crow' Distillery." In 1874 the trade-mark of "Old Crow" having previously, by Gaines, been transferred to the pro- duct of another distillery owned or operated by him or his firm, the complainant came into possession of his own distillery, and it became known as the "Old Oscar Pepper Distillery." The deed directly to the complainant of the distillery premises, made by a com- missioner in pursuance of a decree for partition, refers to an accom- panying plat in which the "Old Crow Distillery" is designated; but early in 1875 an agreement was made by the complainant with one E. H. Taylor, Jr., reciting that the former was owner of the premises upon which is situate the old distillery, which was operated and run by the said Oscar Pepper in his life-time, and providing means for a thorough reparation of said old distillery, and of operating the same for the purpose of manufacturing copper whisky of the grade, charac- ter, and description of that which was made by the said Oscar Pep- per in his life-time, when James Crow and W. F. Mitchell were his ��� �