Page:Federal Reporter, 1st Series, Volume 8.djvu/55

PEPPEB V. LABROT. 41 �Following and applying the principle expressed in the last sentence of this extract, Mr. Justice Strong, in the opinion from which we are still quoting, says : �" It is only when the adoption or imitation of what is claimed to be a trade- mark amounts to a false representation, express or implied, designed or inci- dental, that there is any title to relief against it. True, it inay be, that the use by a second producer, in deseribing truthfully his product, of a name or a combination of words already in use by another, may have the efiect of causing the public to mistake as to the origin or ownership of the product; but if it is just as true in its application to his goOds as it is to those of another who flrst applied it, and who, therefore, claims an exclusive right to use it, there is no legal or moral wrong done. Purchasers may be mistakeu, but they are not deceived, by false representations, and equity will not enjoin against telling the truth." �Tried by these principles, it would seem that the trade-mark claimed by the complainant cannot be sustained as a designation of whisky manufactured by him without reference to the place of its production, and that it is not, therefore, a lawful trade-mark at all, in the proper sense of that term. It is rather the trade-name of the distillery itself, of -which he was at one time the proprietor, but which now is the property of the defendants. Neither by its own meaning, nor by association, does it indicate the personal origin or ownership of the article to which it is affixed. It does not seem to give notice who was the producer. It could be applied by him, with truth, to his goods only while he was the owner of the distillery named, and then only, not to all whisky of his manufacture, but only to that actually produced at that distillery. It can now be used without practicing a deception upon the public only by the defendants. It points only at the place of production, not to the produce. If a trade-mark at all, in any lawful sense, it is only in its use in connection with the article which it truthfully describes ; that is, whisky which is actually manu- factured at the Old Oscar Pepper Distillery, in Woodford county. �In the case of Hall v. Barrows, 4 De Gex, Jones & Smith, 157, there was a trade-mark altogether distinct from the name of the works,. being the initiais of the names of two of the original firms which owned the works, stamped upon the iron produced at the works. The question was whether, in a sale of the works and business to a surviving partner, the trade-marks should be valued as passing in the sale. The Lord Chancellor, Westbury, said : �" There is nothing in the answer or evidence to show that the iron marked with these initiais has, or ever had, a reputation in the market because it was believed to be the actual manufacture of one of the two original firms. ��� �