Bickmore Gall Cure Co. v. Karns Mfg. Co.

Citations

• 126 F. 573
• 1903 U.S. App. LEXIS 5191

Syllabus

<p>1. Trade Marks — Extent of Monopoly Conferred — Infringement.</p> <p>The representation of a horse on packages containing a salve used to cure galls or abrasions of the skin of horses and cattle is generic in character, and the registration of such a representation as a trade-mark cannot give a monopoly of the right, and exclude others from using any representation of a horse on medicine of the same character, but the exclusive right is limited to the representation of a horse of the same or substantially similar appearance, style, or position.</p> <p>2. Same.</p> <p>The term “Gall Cure” is descriptive of a medicine, and cannot be monopolized as a trade-mark, standing alone, and when used as such in connection with a picture is not infringed by the use of the words as a part of the name of another remedy in connection with another and distinctive picture.</p> <p>3. Same.</p> <p>The words, “Be Sure and Work the Horse,” standing alone, cannot be appropriated as a trade-mark for a gall cure where it is shown that they are directive, and also descriptive of the characteristics of a class of remedies which are more effective when such direction is followed. And a trade-mark in which such words are combined with a picture is not infringed by their use by another unless in connection with a similar picture.</p> <p>4. Same — Unfair Competition — Imitation of Packages.</p> <p>The boxes, cartons, and labels used by complainant and defendants for packing the remedies for galls on horses and cattle, made and sold by the parties, respectively, compared, and held to show no greater similarity than would-naturally exist in view of the similarity of the remedies, and not to render defendants chargeable with unfair-competition by imitating complainant’s packages.</p> <p>if 1. Arbitrary, descriptive, or fictitious character of trade-marks and trade-names, see note to Searle & Hereth Co. v. Warner, 50 C. C. A. 323.</p> <p>if 4. Unfair competition, see notes to Scheuer v. Muller, 20