Ball v. Siegel

Citations

• 116 Ill. 137
• 4 N.E. 667

Syllabus

<p>1. Trade mark—in what it may consist—and whether equity will interpose to protect it. The words “health-preserving, ” preceding the word “corset,” in the name adopted by the manufacturer of corsets made under letters patent, but describe a quality of the corset, or the effect which its use will produce, and can not therefore be employed as a trade mark.</p> <p>2. It is well settled that directions, advertisements, notices, etc., constitute no part of a trade mark, and also that no one can obtain a trade mark in the form, appearance or finish of his goods, so that another may not lawfully make his goods like them, nor can there be a trade mark in the form or color of a package or box.</p> <p>3. Even if a party has a trade mark in the name of “Ball,” and picture and words and form of lettering on the labels pasted on his boxes containing corsets, there is no infringement of the same when a different name is used by another manufacturer, with a picture, words and form of lettering on the labels pasted on his boxes so totally unlike those of the former as that no one can reasonably mistake the one for the other.</p> <p>4. As a general rule, exact similitude is not required to constitute an infringement of a trade mark, or to entitle the complaining party to protection; but if the words of the alleged infringed device are such as would be likely to mislead persons in the ordinary course of purchasing the goods, and induce them to suppose they were purchasing the same article, then the similitude is such as entitles the injured party to equitable protection, if he takes seasonable measures to assert his rights and prevent their continued invasion.</p> <p>5. But a court of equity is not bound to interfere when ordinary attention will enable purchasers to discriminate between the trade marks used by different parties.</p>