FEDlIlRAL
vol. 60.
ealwa.y.s 8i slleet .InUl, . and nevel" more,.;tban 12iteet in and because congress, in the prior tariff act of 1863, (22 Stat·. 499,) uses the word "strips" in the steel the qualitying word "sheet;" that to construe ,the term instri,ps" ill the present act to include the ,import in is to entirely ignore the well-known and recogof "sheet steel;" that it is, in effect, to nized eliminate the· word "sheet" from the' statute, and to construe the sentence if it read "ste'el in strips, of whatsoever width, twentyfive one-thousandths of an; inch thick, or thinner." The addition of the word!'sheet" before "steel" makes the meaning of the exsteel dOij.btful,and I do not think the connecting w()rdsin the paragraph,l'whether drawn through dies or rolls, untempered or tempered, ofwhatsoever width, twenty-five of an inch thick or, tllinner," help the contention of either in;. the present controversy, or assist the court as to the propercc>nstruction of thi$ When the question of a is one of doubt, must be rej;lolved in favor of the importer. The intention of congress to impose a higher rate of duty -should be expressed in clear and -unambiguous language. Twine Co. v."Worthington,.141 U. S. 468, 474, 12 Sup. Ct. 55; U. ,13. v.. Isham, 17 Wall. 496;IJartranft v. Wiegmann, 121 U. S. 609,7 $up. Ct. 1240; ·. Gun v. Scudds, H. Exch. 190. It SE:)ell)s to me tJ:tatthis within tbis rule. The de· cision ottheboard of general appraisers is reversed, 'and it is determined by this court that-the several lots of steel covered by said decision should be classified under par8{,Taph 146 of the tariff act of Octo· bel' 1, 1890, as steel in fOtnlsand shapes not specially provided for in said act, valued above four cents, and not above seven cents, per pound, and subject toa duty of two cents per pound, and not sub· ject to an additional duty under paragraph 152 of said act.
=====SOCIAL REGISTER ASS'N v. HOWARD. (01rcu1t coUrt, b. New Jersey. February i6. 1894.) 'l'he wordj;l "Social as applied to a list of. persons resident in a certain locality, compiled by its publisher with reference to the perstandin.g' of such persons, constitute a valid trade-mark, sonal and and tIlelr use by the publisher of a competing list will be restrained. REGISTER.
In Equity. , .On motion for injunction pendeI).te lite. Bill by the Social Register AssociatJ:6n.against Howard. _Motion grant.. ed. G. G. Joh]). for defendant. q.aEEN,; . name Judge.. The: cowplainant ,has for a number of in 'York, under the distinctive -title of "Social :RegiStElr,',' the names and resi·
anq
SOCIAL REGISTER .ABS'N·
ARD.
271
dences of certain persons living in, and in the immediate vicinity of, New York City, including the town of Orange, N. J. These publications were at first monthly, but soon became, and are now published, quarterly. They are prepared with great care, not only as to the facts contained, but as well as regards the personal social standing of those whose names are "selected" for publicatic)U. The publicationwas evidently one of value to those who desired a list of this character, and speedily became pecuniarily remunerative to its projector. The Social Register was thoroughly well known, and to some extent. might be regarded as authority upon the matter it concerned itself with. It coming to the knowledge of the complainantthat the defendant, Frank Howard, had published a similar list of persons residing in Orange, N. J., which he called ''Howard's Social Register," and which publication bore some resemblance to the complainant's publication, it caused notice to be served upon him, forbidding him to use the title "Social Register," which it claimed had bel(ome its property by virtue of its prior and distinctive use of those words, as a trade-mark. The defendant not heeding the complainant has filed its bill of complaint hini, 'for injunction and relief, and now moves for an injunction pendente lite, forbidding the defendant from using, as a title to ills publication, the words "Social Register." These words "Social Register"· are clearly selected arbitrarily to designate the publication of the complainant, and cannot be prop-erly called descriptive, in any sense. Hence, the words, when chosen,associated together, and applied to a list of persons selected at will by the compiler, as in the case at bar, become a trade-mark, and are entitled to protection as such. It is not necessary to cite authorities to. sustain this statement. If this be so, undoubtedly the complainant is entitled to protectioI} from any encroachment upon its acquired rights to the sole use of the terms so employed. Now, it can scarcely be doubted that to permit the defendant to use the same words to designate a similar publication, which is ad· mittedly a rival, so far, at least, as the town of Orange may be concerned, would be to give to the defendant the advantage of the prestige which has already crowned the complainant's publication, and, while thus benefited, the defendant would, in equal degree, inflict damage, pecuniary in character, npon the complainant. This a court of equity should refuse to do. It should be its purpose and 'Object, in matters of this sort, to prevent one from stealing away, unfairly, the business and good will which have been acquired by another. While fair competition promotes the public good, and is to be encouraged, unfair competition, based upon unlawful tactics, should be enjoined. The motion for injunction pendente lite is granted.
272
FEDERAL REPORTER,
KERRY et al. v. TOUPIN. (CIrcuit Court, .D. Massachusetts. Marcb 1, 1894.) No. 3,179. of Canada, Who. are engaged In the manufacture of trademarked articles, andwbo ha,e a place of business in the state of New York, where they make and ship such articles for sale in the United States.' are Within the .international convention of March 20, 1883, for the protection of industrial property; and they may sue in the United States .courts for the infri,llgement of their trade-marks by its citizens. 2. SAME":":W;RAT TQ-ALIENS.
CompllJJ.nants a medicinal compound under the name Gum;" and for some 20 years or more that of, "Syrup 'of namew.as placed conspicuously on the package in which the compound was sold, and in conn,ection therewith appeared a cut of an Indian against a. background of spruce trees and a waterfall. that the adoptlon'and continiioususe of this 'distinctive name and device entitle complainaIitS to claim it as a trade-mark, and to be protected against its infringement by persons' making similar goods.
UrFRINGEMEN1'.
In E<j.pfty.' .OJ;). final .. lUll by John Kerry and others to restraill the infringement of complainagainst Rercule A. ants' trade.:mark. complainants. ;aeach, f9r cornplainantli!. ,JohnJ. Hogan and William A. Hogan, for defendant. ALDRICH, DlstrictJudge. This caUl!le came on for hearing upon bill, answer, and proofs. " In 1860 Henry R. Gray originated a medicinal preparation, tow4ich he gave .the fanciful name of "Syrup of Red Spruce Gum." The compound composed several ingredients, but the oleo-resin of· the: spruce was the leading medicinal feature. It is nqt necessary to consider the character of the preparation, further than to find that it was an original and artificial composition of several natural products, and a useful remedy in throat and lung trOUbles. The originator proc,eeded at once to manufacture and place such preparation before the public. It was put up in four-sided, oblong bottles, wrapped in blue wrappers, on which appeared, inconspicuous. the trade-name, "Syrup of Red Spruce Gum," and in connection therewith the figure ,of an Indian, with, a background of' spruce· trees and a waterfall. There was proper registration of such name and mark at Ottawa in 1872, and at Washington in 1874. Between. 1860. and 1875, the originator used this name and mark continuously, and expended several thousand dollars in advertising and· establishing the name and a trade. In 1875 he assigned all hiarights to Kerry, Watson & Co., of Montreal, to which the complainants have succeeded. Since 1875 the complainants have used the name, mark, and wrapper continuously, and have expended, as the evidence shows, something like $7,000 annually in advertising. They have a manufactory and place of business in Montreal, and for about 15 years have had a place of business at Rouse's Point, N. Y., where they manufacture and ship to various points in the United States. The complainants' annual
