1. Where a manufacturer has habitually stamped his goods with a
particular mark or brand, a court of equity will restrain another
party from adopting it for the same kind of goods.
2. Positive proof of fraudulent intent on the part of the
infringer is not required where the infringement is clearly
shown.
3. Although no precise rule applicable to all cases can be laid
down as to the degree of resemblance necessary to constitute an
infringement of a trademark, an injunction will be granted where
the imitation is so close that by the form, marks, contents, words,
or their special arrangement, or by the general appearance of the
infringing device, purchasers exercising ordinary caution are
likely to be misled into buying the article bearing it for the
genuine one.
4. It is not necessary, to entitle a party to an injunction,
that a specific trademark has been infringed. It is sufficient to
satisfy the court that the respondent intended to represent to the
public that his goods were those of the complainant.
5. In this case, the Court holds that the appellant has
infringed the trademark of the appellee, but that the latter, by
his long continued acquiescence therein, and his unreasonable delay
in seeking relief, has been guilty of inexcusable laches, and is
not entitled to an account for profits. The decree below is
therefore affirmed, so far as it awards an injunction, but reversed
as to damages, and costs in this court are allowed to the
appellant.
The bill in this case was filed June 1, 1872, by Cochrane
Fleming, to restrain the alleged infringement of his trademark for
liver pills, by James H. McLean.
As early as 1834, Dr. Charles McLane, of Morgantown, Va., made
and sold liver pills, putting them up in wooden boxes,
Page 96 U. S. 246
labeled "Dr. McLane's Liver Pills." In June, 1844, Jonathan
Kidd, having purchased the exclusive right from him, began, at
Pittsburg, Penn., to make and sell them. In 1845, Kidd formed a
partnership with John Fleming under the name of Jonathan Kidd &
Co. Kidd died in 1853, and Fleming, the surviving partner, and one
Cochrane Fleming, having purchased from Kidd's executors all his
interest in the business, entered into partnership, under the name
of Fleming Brothers. That firm continued until 1865, when Cochrane
retired. John carried on the business in the firm name until his
death, in November, 1870, whereupon Cochrane succeeded under his
will to all his rights in the business.
Up to August, 1847, the pills in question were wrapped in an
ordinary printed label. In that year, Kidd & Co. commenced
putting them up in wooden boxes, on the cover of each of which were
stamped in red wax the words "McLane's Liver Pill," and on the
wrapper, in a narrow border of scalloped pattern surrounding a
panel, with a background of wave-line engraving, was printed in red
ink a label bearing the words "Dr. C. McLane's Celebrated Liver
Pills." In 1855, Fleming Bros. changed the color of the label to
black, and made certain other changes, as follows: the groundwork
of the engraved wrapper on the top of the box being composed of
fine lines, crossing the box diagonally, and at right angles with
each other, and bearing the words, in white, "Dr. C. McLane's
Celebrated Liver Pills," "Celebrated Liver Pills" being upon a
scroll similar to a double ogee in form with a black background. On
the wrapper were also in white letters the words, "Prepared only by
Fleming Bros., successors to Jon. Kidd & Co.," and a facsimile
of their signature and that of C. McLane, in black. This label,
which is referred to in the opinion of the court as "Exhibit F,"
was used until October 1871, when another change was made, and the
label mentioned in the decree below, and in the opinion of the
court as "Exhibit H," was adopted. In it, the groundwork has shaded
curved lines cutting and crossing each other in such a way as to
produce the effect of alternate light and shade, crossing the top
of the box diagonally in place of the straight lines in "Exhibit
F." In this label, the words "successors to Jon. Kidd & Co."
are omitted.
Page 96 U. S. 247
In 1849, James H. McLean commenced, at St. Louis, Mo., to
manufacture his proprietary medicines, and, in 1851, to manufacture
and sell liver pills, under the name of "Dr. McLean's Universal
Pills," using first a type-printed label in red letters, which he,
in 1852, changed to a lithographed red label, called in the decree
"Exhibit L."
This label is printed in ink of a light red color, with the
words, "Dr. McLean's Universal Pills," in white letters shaded by
red lines running parallel with the length of the label. He used
this label until 1866, having in 1863 inserted therein the initials
(J. H.) of his name. In 1866, he changed his label to that referred
to in the decree as "Exhibit K." In this label, the lines of the
background, which is black, cross the top of the box diagonally and
at right angles to each other, with the words "Dr. J. H. McLean's
Universal Pills or Vegetable Liver Pills" thereon, in white
letters. The use of this label he continued until May, 1872, when
he adopted a new one, in the use of which no infringement of the
complainant's label was found. He also used a stamp in red wax on
his goods.
The court below decreed that the respondent, his agents,
employees, and servants, be perpetually enjoined and restrained
from using, or causing to be used, the words, "D'r J. H. McLean's
Universal Pills or Vegetable Liver Pills," or "D'r McLean's
Universal Pills," or "D'r J. H. McLean's Universal Pills," upon any
label or wrapper for boxes or other packages of pills, resembling
or in imitation of the labels or wrappers or trademark of the
complainant, described as Exhibit H, whether in style of engraving,
printing, or lettering; and from vending or exposing for sale, or
causing to be vended or exposed for sale, any article of pills
having upon the boxes or other packages thereof any such labels or
wrappers so made in imitation of or resemblance to the said labels
or wrappers of the complainant, but did not enjoin or restrain him
from using them on any other labels or wrappers for pills than
those described. It also referred the cause to a master, to take
and state an account of the damages resulting to the complainant
since Nov. 9, 1870, from the violation of his rights.
The master reported the complainant's damages at $7,399.35. The
respondent excepted. His exception having been overruled,
Page 96 U. S. 248
the report confirmed, and a final decree entered, he appealed to
this Court.
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Protection for lawful trademarks may be obtained by individuals,
firms, or corporations entitled to the same if they comply with the
requirements prescribed by the act of Congress, and the provision
is that a trademark, duly registered as required, shall remain in
force thirty years from the date of such registration, subject to
an exception not necessary to be noticed. 16 Stat. 210; Rev.Stat.,
secs. 4937, 4941.
Exclusive ownership of a certain medicinal manufacture, known as
"Dr. C. McLane's Liver Pills," and of the trademark used in
advertising and vending the same, is claimed by the complainant,
and the record shows that he, on the first day of June, 1872, filed
in the circuit court a bill of complaint against the respondent
charging that the respondent had unlawfully infringed the said
trademark, and he prayed for a decree that the respondent shall
render an account of the gains and profits made by the infringement
and for an injunction.
Service was made and the respondent appeared and filed an
answer. Proofs were taken and, the parties having been heard, the
court entered a decretal order in favor of the complainant and sent
the cause to a master to compute the amount of the gains and
profits. Due report was made by the master, to which the respondent
excepted, and the court overruled the exception, confirmed the
report of the master, and entered a final decree for the
complainant, in the sum of $7,399.35.
All matters in that court having been finally determined, the
respondent appealed to this court, and assigns errors as
follows:
1. That the court erred in finding that the labels L and K, or
either of them, infringed Exhibit F, as set forth in the decretal
order.
2. That the court erred in finding that the complainant was
entitled to any damages, and in ordering the assessment thereof,
and in allowing him costs.
3. That the court erred in ordering an account of the sales of
Exhibits L and K, prior to the 16th of October, 1871, the date of
the first use of Exhibit H
Page 96 U. S. 249
by the complainant.
4. That the court erred in overruling the respondent's exception
to the master's report.
Medicines of the kind described were first prepared and sold by
the physician whose name the pills bear, by putting the same in
wooden boxes, labeled with the name of the inventor. For ten years
or more, he used the pills in his practice, but the evidence shows
that on the 19th of June, 1844, he sold the right to use the same
to Jonathan Kidd, who, for a year or more, prepared and sold the
pills under that agreement, when he formed a partnership with John
Fleming, under the style of "Jonathan Kidd & Co.;" which firm
continued to prepare and sell the pills until March 29, 1853, when
the senior partner died.
They (the firm) dealt largely in the business, and, as early as
1847, in order to designate the medicine as an article of their own
manufacture, and to prevent imposition and fraud, they commenced
putting the pills in wooden boxes, of uniform size, shape, and
appearance, each box containing twenty-two pills, with the name of
the original inventor stamped in red wax upon the cover of each
box, around which they placed the red label or wrapper described in
the bill of complaint. Beyond doubt, that label, with its devices,
and the red seal on the box, constituted the trademark by which the
firm made known to their customers and the public the genuine pills
which they prepared and sold; the firm being at the time the owners
of the original recipe, and having the exclusive right to make and
vend the pills.
Within a month subsequent to the death of the senior partner of
the firm, his executors sold and conveyed all the interest of the
decedent in the business to the surviving partner and the
complainant, whereby they, under the firm name of "Fleming
Brothers," acquired not only the title to the recipe and the right
to make and vend the pills, but also the right to use the labels
and trademarks used by the former owners. Possessed of the whole
interest, they (the firm, Fleming Brothers) prosecuted the
business, with some changes in the individual partners, until July
1, 1865, when the present complainant sold out his whole interest
to his brother, John Fleming, who, as sole proprietor of what the
firm owned, continued the business until the 2d
Page 96 U. S. 250
of November, 1870, when he died, leaving a last will and
testament.
When that firm acquired the entire interest, they immediately
enlarged the business, and in the year 1855 they adopted the dark
label, Exhibit F, which is fully and minutely described in the bill
of complaint, and the complainant avers that it has since been used
in the business, with no other substantial alterations than what
are shown in Exhibit H, mentioned in the decretal order.
Both parties agree that the complainant, by the will of his
deceased brother, acquired all the rights which the deceased had in
the business, and the record shows that he has, since the probate
of the will on the 9th of November, 1870, been preparing and
vending said pills, and using the labels and trademarks to
designate their genuineness and to commend their value and
utility.
Evidence was introduced by the respondent, whose name is James
H. McLean, that he commenced in 1849, in St. Louis, to manufacture
his own medicines; that in 1851 he began to manufacture and sell
liver pills, under the name of "Dr. McLean's Universal Pills,"
using first a type-printed label in red letters, which was changed,
in 1852, to a lithographed red label, called in the decretal order
"Exhibit L," which was used down to 1866, except that about 1863 he
added to his name the initials "J.H.," so that the label read, "Dr.
J. H. McLean's Universal Pills;" that in 1866 he changed his label
to the one referred to in the decretal order as "Exhibit K," which
he continued to use until May 21, 1872, when he adopted a new
label, the use of which does not infringe the trademark of the
complainant.
Governed by these facts as stated, the court will examine the
first error assigned, which is, that the court erred in finding
that the labels L and K infringed complainant's Exhibit H, as set
forth in the decretal order. By the order, the respondent, James H.
McLean, his agents, employees, and servants, are perpetually
enjoined and restrained from using, or causing to be used, the
words "Dr. J. H. McLean's Universal Pills or Vegetable Liver
Pills," or the words "Dr. McLean's Universal Pills," upon any label
or wrapper for boxes or other packages
Page 96 U. S. 251
of pills resembling or in imitation of the labels, wrappers, or
trademark of the complainant, described in his bill of complaint as
"Exhibit H," whether in style of engraving, printing, or lettering;
and from vending or exposing for sale, or causing to be vended or
exposed for sale, any article of pills having upon the boxes or
other packages thereof any such labels or wrappers so made in
limitation of or resemblance to the said labels or wrappers of the
complainant.
Equity gives relief in such a case, upon the ground that one man
is not allowed to offer his goods for sale, representing them to be
the manufacture of another trader in the same commodity. Suppose
the latter has obtained celebrity in his manufacture, he is
entitled to all the advantages of that celebrity, whether resulting
from the greater demand for his goods or from the higher price the
public are willing to give for the article, rather than for the
goods of the other manufacturer, whose reputation is not so high as
a manufacturer. Where, therefore, a party has been in the habit of
stamping his goods with a particular mark of brand, so that the
purchasers of his goods having that mark or brand know them to be
of his manufacture, no other manufacturer has a right to adopt the
same stamp, because, by doing so, he would be substantially
representing the goods to be the manufacture of the person who
first adopted the stamp, and so would or might be depriving him of
the profit he might make by the sale of the goods which the
purchaser intended to buy.
Seixo v. Provezende, Law Rep. 1
Ch. 195.
What degree of resemblance is necessary to constitute an
infringement is incapable of exact definition, as applicable to all
cases. All that courts of justice can do in that regard is to say
that no trader can adopt a trademark so resembling that of another
trader as that ordinary purchasers, buying with ordinary caution,
are likely to be misled.
Unreasonable delay in bringing a suit is always a serious
objection to relief in equity, but cases arise in litigations of
the kind before the Court where the complainant may be entitled to
an injunction to restrain the future use of a trademark, even when
it becomes the duty of the court to deny the prayer of the bill of
complaint for an account of past gains and profits.
Harrison v.
Taylor, 11 Jur.N.S. 408.
Page 96 U. S. 252
In such cases, the question is not whether the complainant was
the original inventor or proprietor of the article made by him and
on which he puts his trademark, nor whether the article made and
sold under his trademark by the respondent is equal to his own in
value or quality, but the court proceeds on the ground that the
complainant has a valuable interest in the goodwill of his trade or
business, and, having adopted a particular label, sign, or
trademark indicating to his customers that the article bearing it
is made or sold by him or by his authority or that he carries on
business at a particular place, he is entitled to protection
against one who attempts to deprive him of his trade or customers
by using such labels, signs, or trademark without his knowledge or
consent.
Coats v. Holbook, 2 Sandf. (N.Y.) Ch. 586;
Partridge v. Menck, 2 Barb. (N.Y.) Ch. 101.
Everywhere courts of justice proceed upon the ground that a
party has a valuable interest in the goodwill of his trade, and in
the labels or trademark which he adopts to enlarge and perpetuate
it. Hence it is held that he, as proprietor, is entitled to
protection as against one who attempts to deprive him of the
benefits resulting from the same, by using his labels and trademark
without his consent and authority. Decided cases to that effect are
quite numerous, and it is doubtless correct to say that a person
may have a right in his own name as a trademark as against a trader
or dealer of a different name; but the better opinion is, that such
a party is not, in general, entitled to the exclusive use of a
name, merely as such, without more.
Millington v. Fox, 3
Myl. & Cr. 338;
Dent v. Turpin, 2 Johns. & Hem.
139;
Meneely v. Meneely, 62 N.Y. 427.
Instead of that, he cannot have such a right, even in his own
name, as against another person of the same name, unless such other
person uses a form of stamp or label so like that used by the
complaining party as to represent that the goods of the former are
of the latter's manufacture. Nor will any other name, merely as
such, confer any such exclusive right, unless the name is printed
in some particular manner in a label of some peculiar
characteristics, so that it becomes to some extent identified with
a particular kind of goods, or when the name is used by the party,
in connection with his place of business,
Page 96 U. S. 253
in such a manner that it assumes the character of a trademark
within the legal meaning of that term, and as such entitles the
party to the protection of a court of equity, to prevent others
from infringing the proprietor's exclusive right.
Gilman v.
Hunnewell, 122 Mass. 139;
Colladay v. Baird, 4 Phil.
(Pa.) 139;
Sykes v. Sykes, 3 B. & C. 541;
Croft v.
Day, 7 Beav. 89;
Burgess v. Burgess, 3 DeG., M. &
G. 896;
Holloway v. Holloway, 13 Beav. 209;
Rogers and
Others v. Taintor, 97 Mass. 291.
Much must depend in every case upon the appearance and special
characteristics of the entire device, but it is safe to declare as
a general rule that exact similitude is not required to constitute
an infringement or to entitle the complaining party to protection.
If the form, marks, contents, words, or the special arrangement of
the same, or the general appearance of the alleged infringer's
device is such as would be likely to mislead one in the ordinary
course of purchasing the goods and induce him to suppose that he
was purchasing the genuine article, then the similitude is such as
entitles the injured party to equitable protection if he takes
seasonable measures to assert his rights and to prevent their
continued invasion.
James v. James, Law Rep. 13 Eq. 425;
Singleton v. Bolton, 3 Doug. 293;
Morrison v.
Salmon, 2 Man. & G. 385;
Boardman v. Meriden Britannia
Co., 35 Conn. 413.
Such a proprietor, if he owns or controls the goods which he
exposes to sale, is entitled to the exclusive use of any trademark
adopted and applied by him to the goods, to distinguish them as
being of a particular manufacture and quality, even though he is
not the manufacturer, and the name of the real manufacturer is used
as part of the device.
Walton v. Crowley, 3 Blatchf. 440;
Emerson v. Badger, 101 Mass. 82.
Equity courts will not in general refuse an injunction on
account of delay in seeking relief where the proof of infringement
is clear, even though the delay may be such as to preclude the
party from any right to an account for past profits.
Rodgers v.
Rodgers, 31 L. T. 285;
Blackwell v. Crabb, 45 L.J.Pt.
I. 505.
Positive proof of fraudulent intent is not required where the
proof of infringement is clear, as the liability of the
infringer
Page 96 U. S. 254
arises from the fact that he is enabled, through the unwarranted
use of the trademark, to sell a simulated article as and for the
one which is genuine.
Wotherspoon v. Currie, Law Rep. 5
App.Cas. 512.
Nor is it necessary in order to give a right to an injunction
that a specific trademark should be infringed, but it is sufficient
that the court is satisfied that there was an intent on the part of
the respondent to palm off his goods as the goods of the
complainant and that he persists in so doing after being requested
to desist.
Woollam v. Ratcliff, 1 Hem. & M. 259.
Apply these rules to the case and it is clear that the charge of
infringement is satisfactorily proved in this case.
Words or devices, or even a name in certain cases, may be
adopted as trademarks which are not the original invention of the
party who appropriates the same to that use, and courts of equity
will protect the proprietor against any fraudulent use or imitation
of the device by other dealers or manufacturers. Property in the
use of a trademark, however, bears very little analogy to that
which exists in copyrights or in patents for new inventions or
discoveries, as they are not required to be new, and may not
involve the least invention or skill in their discovery or
application. Phrases, or even words in common use, may be adopted
for the purpose if, at the time of their adoption, they were not
employed by another to designate the same or similar articles of
production or sale. Stamps or trademarks of the kind are employed
to point out the origin, ownership, or place of manufacture or sale
of the article to which it is affixed, or to give notice to the
public who is the producer, or where it may be purchased.
Canal Company v.
Clark, 13 Wall. 311.
Subject to the qualification before explained, a trademark may
consist of a name, symbol, figure, letter, form, or device, if
adopted and used by a manufacturer or merchant in order to
designate the goods he manufactures or sells to distinguish the
same from those manufactured or sold by another, to the end that
the goods may be known in the market as his, and to enable him to
secure such profits as result from his reputation for skill,
industry, and fidelity. Upton, Trademarks 9;
Taylor v.
Carpenter, 2 Sandf. (N.Y.) Ch. 603; Coddington, Dig. 9.
Complainant's pills have been in the market as a vendible
Page 96 U. S. 255
article for more than forty years, and during that whole period
have been sold under trademarks of the forms heretofore
sufficiently described, and they are still sold under the trademark
mentioned in the decretal order.
Difficulty frequently arises in determining the question of
infringement, but it is clear that exact similarity is not
required, as that requirement would always enable the wrongdoer to
evade responsibility for his wrongful acts. Colorable imitation,
which requires careful inspection to distinguish the spurious
trademark from the genuine, is sufficient to maintain the issue,
but a court of equity will not interfere when ordinary attention by
the purchaser of the article would enable him at once to
discriminate the one from the other. Where the similarity is
sufficient to convey a false impression to the public mind, and is
of a character to mislead and deceive the ordinary purchaser in the
exercise of ordinary care and caution in such matters, it is
sufficient to give the injured party a right to redress, if he has
been guilty of no laches.
Amoskeag Manufacturing Co. v.
Spear, 2 Sandf.S.C. 599; Coddington, Dig. 109;
McAndrew v.
Bassett, 4 DeG., J. & S. 380.
Argument to show that the name of the pills, as given in the
trademark of the respondent, was of a character to mislead and
deceive, is scarcely necessary, as they are
idem sonans in
the usual pronunciation; nor can it be doubted that the form of the
box containing the pills and the general appearance of the wrapper
which surrounded it were calculated to have the same effect.
Mention may also be made of the fact that the color of the label
and the wax impression on the top of the box are well suited to
divert the attention of the unsuspecting buyer from any critical
examination of the prepared article.
Chancery protects trademarks upon the ground that a party shall
not be permitted to sell his own goods as the goods of another, and
therefore he will not be allowed to use the names, marks, letters,
or other indiciae of another, by which he may pass off his own
goods to purchasers as the manufacture of another.
Croft v.
Day, 7 Beav. 84;
Perry v. Truefitt, 6
id.
66;
Newman v. Alford, 51 N.Y. 192.
Witnesses in great numbers were called by the complainant, who
testified that the Exhibits L and K of the respondent were
Page 96 U. S. 256
calculated to deceive purchasers, and the reasons given by them
in support of the conclusion are both persuasive and convincing.
Difference between those exhibits and Exhibits F and H of the
complainant undoubtedly exist, and still it is manifest that the
general appearance of the package in the respects mentioned and
others which might be suggested is well calculated to mislead and
deceive the unwary and all others who purchase the article without
opening the box and examining the label.
Caswell v. Davis,
58 N.Y. 223.
Two trademarks are substantially the same in legal contemplation
if the resemblance is such as to deceive an ordinary purchaser
giving such attention to the same as such a purchaser usually
gives, and to cause him to purchase the one supposing it to be the
other.
Gorham Company v.
White, 14 Wall. 511.
Suffice it to say, without entering further into details, the
Court is of the opinion that the first assignment of error must be
overruled, and that the injunction was properly granted to prevent
infringement subsequent to the filing of the bill of complaint.
Suppose that is so, still the respondent contends that the court
erred, as alleged in the second assignment of errors, and that the
complainant is not entitled to an account, nor to a decree for
gains, profits, or damages. Support to that proposition is
attempted to be drawn from the long delay of the complainant, and
those under whom he claims, to take any legal steps to protect
their alleged rights. Opposed to that, it is insisted by the
complainant that no such defense is open to the respondent, as it
was not set up in the answer. Nothing of the kind is directly set
up in the answer; but the respondent denies all intent to injure or
defraud the complainant, and avers that he has been engaged during
the last twenty years in perfecting his pills, and that he had no
idea that his trademarks infringed the trademarks of the
complainant.
Proofs were taken upon both sides upon the subject, and the
respondent, in his petition for rehearing filed in the court below,
expressly alleges that the immediate predecessor of the complainant
was perfectly familiar with the pills manufactured by the
respondent, and well knew that the respondent used the labels in
question; that the agent of the complainant, May 20,
Page 96 U. S. 257
1872, called on the respondent and remonstrated with him for
using the label Exhibit K, and that he on the following day adopted
a different label, as therein fully explained.
Examined in the light of these suggestions, the court is of the
opinion that the question presented in the second assignment of
error is open for reexamination.
Sullivan v. Portland, &c.
Railroad Co., 94 U. S. 806.
Repetition of the facts is unnecessary, as it sufficiently
appears that the respondent has been engaged in preparing and
selling his pills for more than forty years; that during that
period, or more than half of it, he has been using labels and
trademarks corresponding more or less to those used by the
predecessors of the complainant, some of whom, during all or most
of that time, knew what the labels and trademarks were which were
used by the respondent, the evidence to that effect being full and
decisive.
Negotiations took place at one time between the respondent and
one of the predecessors of the complainant for an interchange of
commodities, with a view that both commodities might be sold at
each of their respective places of business.
Evidence of a decisive character is exhibited in the record to
show that the complainant or his predecessor knew throughout what
description of labels and trademarks the respondent was using, and
it does not appear that any objection was ever made, except as
heretofore stated and explained. Once, the respondent was requested
to insert the initials of his Christian name before his surname in
the label, and it appears that he immediately complied with the
request.
Cases frequently arise where a court of equity will refuse the
prayer of the complainant for an account of gains and profits, on
the ground of delay in asserting his rights, even when the facts
proved render it proper to grant an injunction to prevent future
infringement.
Harrison v. Taylor, 11 Jur.N.S. 408; Cox,
Trademarks 541.
Relief of the kind is constantly refused, even where the right
of the party to an injunction is acknowledged because of an
infringement, as in case of acquiescence or want of fraudulent
intent.
Moet v. Couston, 33 Beav. 578;
Edelsten v.
Edelsten, 1 De G., J. & S. 185;
Millington v.
Fox, 3 Myl. & Cr. 398;
Page 96 U. S. 258
Myeth v. Stone, 3 Story, 284;
Beard v. Turner,
13 Law Times, N.S. 747;
Estcourt v. Estcourt, Law Rep. 10
Ch. 276; Coddington, Dig. 162; High, Injunc. 405.
Acquiescence of long standing is proved in this case, and
inexcusable laches in seeking redress, which show beyond all doubt
that the complainant was not entitled to an account nor to a decree
for gains or profits; but infringement having been proven, showing
that the injunction was properly ordered, he is entitled to the
costs in the circuit court; but the decree for an account and for
the supposed gains and profits being erroneous, the respondent, as
appellant, is entitled to costs in this court. Browne, Trademarks,
sec. 497.
Decree as to the injunction and costs in the circuit court will
be affirmed, but it will be reversed as to the decree for an
account and as to the allowance for gains and profits, with costs
in this court for the appellant; and the cause will be remanded
with direction to enter a decree in conformity with the opinion of
this court, and it is
So ordered.