PRICE BAXIN(H?OWDER CO. 1/. F;YFE.

799

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:

!'JuDlI-MABE-CRBJ.JI

,

On motion tor preliminary injunCtion,' to restrain the use of the word" Cream" in ,oonnection with the wordll !';Baking-PoWder, " it appeared that. COmplainant, since 1866, had manufacturedaud 801d au article which it desigllated as "Dr. Price'8 'Cream ;'that the word "Cream" had not been' used on packages of baking-pow<ler before tb,at andtbat it is not descriptive 9f an ingredient of tbeartiole, or of its qUality or lUnd. QfJld, that the be granted.

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'Motion for, preliminarY illjunQtiou. ,Davis,. Ke1kJgg & Severance,; for' Lawler&: Durment, .
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,J. 'A a injunction to strain the .use of the word,'.'Crealll." in,connection with the words" Powder," which is manllfactured and put upon the by the fendant,. JlQd, is aJleged,in packages having labels and wrapperS similar ip·,design to. t1lOs6, upon the goods of complainant, and exact enough ,to deceive. The il! organized under the laws of the state of Illinoi!l, and a citizen thereof. and uses in trade the word" Cream" incpmbinatiQnwith the wordi!" Dr. Price's" or "Price's Baking Powder;" aQd the c:iefend,ant, a, of MiQnesota, affixes the word" Cream," in cOqlbinlltion with the Baking to the packages containing the article he manufactures sells. It is conceded that the bakiqg in cans, and ,d,esignated as .stated with the word "Cream," has been manufactured ,and, ,sold since. 1866 by the complainant or,tbose from wllo}:Dit de.rives ownership; and the defendant in his opposition to this Ipotion IUlmits that he has been familiar with the. article, and halldled it, "Dr. Price's Cream BakingUlore than 15. years. He urges, however, that the .complainant no property iJ;l and is not entitled to protection in the exc).usiveusj:l,of the worli in combination the other words a trade-Ipark. The chief s,md essential feature of. the words used by trade is the word "Qraam," andin.tpe affidavit orde{endaQt not appear, thisworq had been.' on packag,es containing baking-powder before it was adopted by. or its grantors. This word then, by association, as early as 1866, pointed distinctively to the origin or ownership of the article to which it is applied. Since that time, upon the wrappers of cans containing this article, put up by others, and earlier than the defendant's manufacture, the words "Pure Cream-Tartar Baking-Powder" is printed. This is of no importance on this motion, although the phrase is a singular one. Tartar, when pure, is called" cream of tartar." and the phrase" pure creamtartar" would appear to be tautological. The complainant is certainly entitled to protection in the use of this word, in connection with the baking-powder it manufactures, unless it is adopted and used as descrip-

"as

800

. fiDERAL REPORTER,

vol. 45.

tive of the article, its ingredients or characteristics. The word "Cream," in combination with the other words, "Dr. Price's," or "Price's BakingPowder," designates an article which as thus named was unknown in the trade until adopted in 1866. It is not descriptive ofaningredient of the article, or of its quality or kind. The baking-powder is neither compose4 iupart of cream, nor does that word convey the idea. that it is the "best "or "choicest;" as asserted by defendant. It is true the word the best part of a particular thing,but "cream" is often used to notthe thing itself,as, for instance, the cream of astorYi but only in that relation has the word any such signification. The complainant had a right to appropriate a word which had not been. previously used, to identify his particular'manufacture, and distinguish it from articles of the same general nature, manufactured and .sold by others. Wpen launched upon the market, it must be given a name by which it could called "Cream Baking-Powder,"-a word approbe recognized. It priatedby the mantifacturer,-so that his article would thereafter be known, dealt. in, lind distinguished from others. "The first appropriator ofaname or device * *. * which, by being associated with articlesof'trade, has acquired an understood reference tb the originator or manufacturer of the articles, is injured whenever ltn6ther adopts the same name or device ;{or similar articles, because such adoption is, in effect; representing falsely that the productions of the lattet are those of thi=dotmer." LawrenceManuj'gCo.v. Tennessee Manuf'gOo., 11' Sup. Ct. Rep" 400, (March 2, 1891.) It is admitted, or at least nbt denied, that this trade-:mark was sustained in 1873 in the federal'collrt of the northern distHct of Illinois. Although this decision was prior to that of the United ,States supreme court in the Trade-Mark Ca8es,(100U. S. 82,) the court 'in IllinoisctlUld not have upheld the trade-mark, if the word "cream" was descriptive 'of quality of the article. While this ion is not conclusive and binding on this court,it is persuasive and of injunction, especially great weight, and on a motion for when it sustains the impression of the court on the hearing,is decisive. It is unne6essary to consider the other ground urged, that the form in which the artiCle manufactured by the defendant is put upon the market, its wrappe'rsand labels, and other devices are of a similitude, exact enough to warrant the relief asked. Motion granted, with leave to defendant to move to injunction at the next June term of this court after the answer iafiled·.

JEWETT JEWETT
V.

V.

BRADFORD SAV. BAn

&

TRUST co.

801

BRADFORD SAV. BANJr & TRUST Co. et ale

(Oircuit Oourt, D.

!

Vermont.

April 7, 1891.)

1.

FEDBRALCOUBTS-JURISDICTION-,.CHOSB IN ACTION.

A proceeding in equity to compel the transfer upon the books of a corporation of 'oorpol'ate lItock which the complainant had purchased from a third person, is not ·a suit "to recover the contents of any promissory note or other chose in action in favor of any assignee" of which jurisdiction is excluded from the federal courts by Act Congo 1888, § 1. .

B. SA.ME.....CITIZENSHIP 01' P ARTIBS. The exemption frolI\ suit out of. the district of inhabitancy, secured by Act Congo 1888,§ I, Is personal to a defendant, and may be waived; and where suit is brought by a citizen of Massachusetts against a Vermont corporation and a New York c6r" poration in, the circuJt llourt of Vermont, it will not be dismissed on motion of the Vermont corporation for want of jurisdiction of the parties in the absence of objectionby.the. New York company, especially if the suit is a proceeding to enforce an equitable claim to property in the district within the meaning of Rev. St., U.

's 788.,

e.

In Equity. John R. Poor and O. A. Prouty, for complainant. John H. Watson and John Young, for defepdants. WHEELER, J. The orator is a citizen of Massachusetts, the Bradford Savings Bank & Trust Company of Vermont, and the ganover National Bank of New York. The bill is brought to compel the savings bank tb transfer on its books to the orator 94 shares of its stock, bought of the Windsor National Bank, a citizen of Vermont, of which he holds ce'ttificates and transfers, and about· which the Hanover NationSl Bank has some interest. The latter bank has appeared in the suit. The savings bank has moved to dismiss for want of jurisdiction of the parties, because the other defendant is not a citizen of Vermont; and for want of jurisdiction of the cause, because the orator's claim is 19at' of an assignee of the stock a,s a chose in action. The other defendant might have objected to being sued in this district, but this defendilnt is sued in the district whereof it is an jnhabitant, and has no ground to complain of that place. Full jurisdiction of suits, in which there is a controversy between citizens of different states, is given to the circuitcdurts at the beginning of section 1 of the Acts of 1887 and 1888; the exemption from suit out of the district of inhabitancy is personal and may be Ex parte Sdhollenberger, 96 U. S.369.Especially is this so in a suit to enforce an equitable claim to property in the district where it is as this appears to be. Rev. St. U. S; § 738. Shares of stock in corporations are mere rights todivi(iends of the corporate profits or property, and in many, and perhaps most, senses chases in action; and if this suit was brought to recover such dividends that had accrued to a. former owner of the stock, and been acquired by assignment, it could not probably be maintained. The language of the latter part of that section in this respect is: v.45F.no.12-51