That since the said purchase by plaintiff of the right to make and vend said preparation, or compound or cosmetic, the plaintiff has been engaged in the manufacture and vending of the same, in large quantities, throughout the United States, and in particular, in the city and State of New-York. That the said preparation, or compound or cosmetic, is, and for many years past has been, put up for sale in bottles, of an octagon shape, each holding about five ounces, and each bottle having stamped on the sides thereof the words "Balm of Thousand Flowers," with the name of the manufacturer, and his residence; upon each bottle was, and is, placed a label, printed in gilt letters upon dark blue paper, as follows: "Balm of Thousand Flowers, for beautifying the complexion, curing diseases of the skin, shaving, cleansing the teeth, for the toilet and the nursery, and many medicinal purposes. Price 50 cents per bottle. None genuine unless signed by the proprietors, W. P. Fetridge & Co." Schedule A, hereto annexed, is a fac-simile of such label. That outside of each of said bottles is a paper wrapper, of a dark blue color, having printed thereon the same words as the label, heretofore referred to as being pasted on the bottle, a fac-simile of which is hereto annexed, marked schedule B. This label upon the wrapper is surrounded by a heavy gilt bordering, and surmounted by flowers, wreathed, as by reference to said schedule B will more fully and accurately appear. Plaintiff further says, that he has used the same kind of bottles, and of labels, and the same kind of wrappers, in all respects, except as hereinafter stated, since he became the proprietor of the right to manufacture and vend said preparation or compound; but the only difference in the labels and wrappers used by him is, that upon those used by him, prior to April, 1856, are the words, "Fetridge & Co., Boston," instead fo "W. P. Fetridge & Co., New-York." That the said preparation, or compound or cosmetic, when sold at wholesale, is put up in green paper boxes, each box containing one dozen bottles, and each box having a label thereon, of which said schedule B is a fac-simile; and the said labels on the bottles, and on the wrappers, are now well know to the trade, and to consumers, as indicating the genuine preparation, or compound or cosmetic, called "Balm of Thousand Flowers," prepared by plaintiff's firm. That there is nothing on the said bottles or labels, or in the name given to said preparation, or compound or cosmetic, to indicate the mode or process of manufacture of said preparation or compound, or the peculiar or relative quality thereof; but the name was a new one, and was given, and the labels were designed, to distinguish the said preparation or compound, and as a trade mark which should give to the public an assurance of its genuineness. That by means of the good qualities of the said preparation or compound, and of the care, skill and fidelity with which the manufacture and sale thereof have been conducted, as aforesaid, the said preparation or compound has acquired a great reputation with the trade and with individuals throughout the United States, and large quantities are constantly required from plaintiff's firm to supply the regular demand, for the consumption of the country; and plaintiff, through his firms, has, at large expense, established the sale thereof to, and by the wholesale dealers, as well as retailers, in nearly all of the larger cities, towns and villages throughout the United States; and, in addition thereto, has expended and incurred over one hundred thousand dollars in advertising the same, and bringing it into use, and has been reaping large gains and profits from the sale thereof. Plaintiff further shows, that while prosecuting the making and vending of said "Balm of Thousand Flowers," he has recently discovered that the defendant, Marvin J. Merchant, and the other defendants, whose names he does not know, but who are above designated as John Doe and Richard Roe, designing and intending, as he is informed and believes, to procure the custom and trade of persons who are in the habit of dealing in, and of persons who are in the habit of using or vending, the plaintiff's “Balm of Thousand Flowers," and to induce the public to suppose and believe that they are vending the "Balm of Thousand Flowers," are now extensively engaged in making and selling, and offering for sale, a preparation or compound under the name of "Balm of X Thousand Flowers," which they have put up, for sale, in bottles of the same size and shape as those used by plaintiff, and stamped and marked so as to resemble the preparation or compound of the plaintiff, and which he is engaged in making and vending, as aforesaid, and had been engaged in making and vending, long before the defendants commenced their fraudulent imitation thereof. That the words, "Balm of Thousand Flowers," are printed in a very conspicuous manner, and the X is so printed that few persons, desiring to purchase the "Balm of Thousand Flowers," would observe the X, or understand its meaning. That plaintiff has obtained specimens of the bottles and labels and boxes used by the defendants. That the labels and wrappers and boxes are of the same colored paper as the plaintiff has long used, and the ink used is also of the same color. The bottles have upon them the same stamp, except that, before the word "Thousand," is an "X," and the name "Merchant's" is substituted for "Fetridge & Co." That schedule C, hereto annexed, is a fac similie of the wrapper used by the defendants, and of the label upon the boxes; and the label upon the bottles contains the same words as are inclosed within the gilt bordering which is on the said wrapper, and are printed in the same style. That the general appearance of the said spurious article -the bottles, labels, wrappers and boxes-is well calculated to deceive those dealing in the purchase and sale thereof; and the plaintiff alleges and insists, that the said spurious article, so sold and offered for sale by the defendants, can only be distinguished from the plaintiff's genuine preparation by a close examination of the label, and a more close examination than consumers will generally bestow. That the plaintiff has not been able to ascertain the extent to which the defendants have carried their fraudulent imitation of his said "Balm of Thousand Flowers," but he has found the same offered for sale in several stores and places, and he is informed and believes it is now being daily sold for lower prices than the plaintiff is and has been selling his said "Balm of Thousand Flowers." Plaintiff alleges, that the fraudulent and inequitable conduct of the defendants, as aforesaid, is greatly injuring the plaintiff in the sale of his genuine "Balm of Thousand Flowers," and the profits which he would otherwise reasonably make thereon; and he charges and insists, that the spurious article, so sold and offered for sale by the defendants, is a fraud and deception upon such of the citizens of New-York, and of the United States, as purchase the same, believing it to be the same article as is manufactured by the plaintiff or his firm. Wherefore the plaintiff demands judgment, that the defendants, and each of them, and their and each of their attorneys, solicitors, counselors, agents and servants, may be enjoined and restrained from selling, or offering for sale, directly or indirectly, any preparation or compound manufactured by them, or either of them, or by any other person or persons than the plaintiff, or the firm of W. P. Fetridge & Co., having upon the bottles, labels or boxes, the words "Balm of Thousand Flowers," or "Balm of X Thousand Flowers," or having or using any label or wrapper, printing, or device thereon, in such manner as to be a colorable imitation of those used by the plaintiff, or the firm of "W. P. Fetridge & Co.," to designate or distinguish the plaintiff's preparation or compound, usually known as "Balm of Thousand Flowers," as, in this complaint, is hereinbefore more particularly stated; and that, pending this action, an injunction order may be granted, restraining the defendants, their attorneys, solicitors, counselors, agents and servants, as above demanded, and that the defendants may be adjudged to account to the plaintiff for all profits which they have made by the sale of said fraudulent imitation of the plaintiff's preparation or compound, and all profits which the plaintiff would have made on the sale of his genuine preparation or compound, known as "Balm of Thousand Flowers," but for the defendants aforesaid selling, and offering for sale, the preparation, with the simulated bottles, labels and boxes, and that the plaintiff may have such other relief or such further relief in the premises as may be just and equitable. BROWN, HALL & VANDERPOEL, 15 |