EMILIE SAXLEHNER (179 U. S. 42) บ. SIEGEL-COOPER COMPANY. EMILIE SAXLEHNER v. RUDOLPH GIES. EMILIE SAXLEHNER v. LOUIS MARQUET. Trademarks-infringement—injunction. The infringer of a trademark is not exonerated from liability to a sult for an Injunction by reason of the fact that he acted innocently. [Nos. 30, 31, 32.] Argued March 22, 23, 1900. Decided October 15, 1900. See the case preceding. Mr. Justice Brown delivered the opinion of the court: These three cases were brought against retail dealers, and defended by the Eisner & Mendelson Company, who imported and furnished the defendants with the water sold by them. The bills charged the defendants generally with unlawfully selling bitter water under labels simulating Saxlehner's blue and red label, and under the name "Hunyadi." The answer was substantially the same as that in the main case, and the same record of proofs was used. (179 U. S. 43) EMILIE SAXLEHNER v. ALEXANDER NIELSEN. Trademarks abandonment-laches. 1. The laches of the owner of a trademark in the word "Hunyadi" is sufficient to defeat his rights therein, when by twenty years of inaction he has permitted the use of the word by infringers in this country who are using It under licenses from the Hungarian government, until the name has become generic as Indicative of the whole class of medicinal waters for which it is used. 2. A right of action for fraudulent use of labels is not defeated, on the ground of laches, by fallure for many years to assert it, when during that time the owner was making repeated, persistent, and for a long time unsuccessful, efforts in his own country to establish his rights. [No. 33.] Argued and Submitted March 22, 23, 1900. WRIT OF CERTIORARI to the United O`States Circuit Court of Appeals for the Second Circuit to review a decision reversing a decree of the Circuit Court on a bill for injunction against infringement of a trademark and labels. Reversed. See same case below, 63 U. S. App. 144, 91 Fed. Rep. 1004, 34 C. C. A. 690. Statement by Mr. Justice Brown: This was a bill of similar character to those involved in the prior cases, and was brought to enjoin the defendant from selling water under the name of "Hunyadi Lajos," or any other name in which the word "Hunyadi" occurs, as well as selling such water in bottles or under capsules or labels resembIn the case against the Siegel-Cooper Com-ling those of the plaintiff upon her bottles pany there was no charge of an intentional fraud, and the court found there was no evidence of fraudulent conduct on its part, and dismissed the bill as to that company. As to the other two cases the court found that the clerks in charge of their stores, in response to special requests for Janos water, wrapped up and delivered Matyas water purchased of the Eisner & Mendelson Company. In other words, that they had palmed off the one for the other. We think that an injunction should issue against all these defendants, but that, as the Siegel-Cooper Company appears to have acted in good faith, and the sales of the others were small, they should not be required to account for gains and profits. The fact that the Siegel-Cooper Company acted innocently does not exonerate it from the charge of infringement. Moet v. Couston, 33 Beav. 578; Millington. Fox, 3 Myl. & C. 338; Edelsten v. Edelsten, 1 DeG., J. & S. 185; Browne, Trademarks, § 386. of "Hunyadi Janos" water. The answer pleaded abandonment and laches. The circuit court made a similar decree to that in the Eisner & Mendelson suit, enjoining the infringement of plaintiff's red and blue label, requiring an accounting for damages, and denying relief against the use of the name) "Hunyadi." The circuit court of appeals reversed this decree, and ordered the bill to be dismissed. Messrs. Antonio Knauth, John G. Johnson, Joseph H. Choate, and Arthur Briesen for petitioner. Mr. Louis C. Raegener submitted the case for respondent. Mr. Justice Brown delivered the opinion of the court: The evidence in this case is much less complete than that in the cases just decided, although its general tendency is much the same. Plaintiff proves the adoption of the The decrees of the Circuit Court of Ap-name "Hunyadi" by certificate of the municpeals in these cases are also reversed, and the cases remanded to the Circuit Court for the Southern District of New York for further proceedings, etc. ipal council of Buda, dated January 19, 1863, authorizing Saxlehner to give his spring the name of "Hunyadi Spring," and by other certificates of a similar character. the former case, we think that defendant should be held accountable for this misappropriation. It was shown that Andreas Saxlehner had used uninterruptedly the trademark "Hunyadi Janos" ever since 1865; that in 1873 he had registered this trademark in Hun- The decree of the Circuit Court of Appeals gary, and that plaintiff had re-registered the will therefore be reversed, and the case resame in 1890. It was admitted that, if the manded to the Circuit Court for the Eastern plaintiff had not been guilty of laches, ac- District of New York with direction to requiescence, or abandonment, she would un-instate its decree of July 18, 1898, and for doubtedly be entitled to the exclusive en- further proceedings consonant with this joyment of both name and label. opinion. (179 U. S. 58) DANIEL WILEY, Plff. in Err., v. jamin Elfe. Error to circuit court-constitutional question-right to vote for member of Congress jurisdiction of circuit courtamount in dispute-sufficiency of pleading-right of unregistered voter to contest 1. statute. But the contract with the Apollinaris Company was also put in evidence, together with testimony showing that from 1886, when the Hunyadi Arpad water began to be imported, some fourteen different Hunyadi D. L. SINKLER, T. D. Lanigan, and Benwaters were put upon the American market without opposition on the part of Saxlehner or the Apollinaris Company, and that the name "Hunyadi" had become widely known in this country as applicable to Hungarian bitter waters. Of some of these waters the importations were as high as six or seven thousand cases a year. As stated in the former opinion, the use of the name "Hunyadi" had become generic in Hungary, and Saxlehner could not have been ignorant of this fact, or of the further fact that exportations of these waters were constantly being made to foreign countries. He was, at least, put upon inquiry as to whether these waters were not being sold in America in competition with his own, and he should have either instructed the Apollinaris Company to prosecute the infringements, or instituted proceedings him. self to vindicate his proprietary interest in the name. Under such circumstances we think it too late now to maintain an exclusive title on the part of the plaintiff to the name "Hunyadi," and that she has been guilty of laches which preclude her right to an injunction. 2. 3. So far as the question of label is concerned, plaintiff's witnesses proved sales of the Hunyadi Janos water in this country since about 1870, first under a red and white label and afterwards under the red and blue label. Defendant's water does not come from the neighborhood of Buda-Pesth, but from a spring situated at Kocs, more than 4. a hundred miles from that place, though the water is apparently of similar character. His label appears to have been designed originally by one Schmidthauer, in Hungary, where it was registered as a trademark in July, 1892, and introduced the same year into this country. The label is so obviously an 5. imitation of the Saxlehner label that defendant makes no argument to the contrary, and the appearance of the two is so nearly alike that a casual purchaser would easily suppose he was purchasing the Hunyadi Janos water in buying that of the defendant. record also shows that the trademark registered by Schmidthauer in July, 1892, as above stated, was canceled by the Gyor Chamber of Commerce and Industry on March 24, 1897. There seems to have been no excuse for the adoption of this label except the fact that so many dealers of bitter water in Hungary had seized upon Saxlehner's name and label that it was treated as public property. For the reasons stated in 21 S. C.-2 The The right to vote for members of the Congress of the United States has its foundation in the Constitution of the United States, and therefore a case involving the question may be brought directly from the circuit court to the Supreme Court, under the act of Congress of March 3, 1891, chap. 517, § 5, cl. 4 (26 Stat. at L. 828). An action against election officers to recover damages for the rejection of a vote for a member of the House of Representatives for the United States, in which the damages are laid at the sum of $2,500, is within the jurisdiction of the circuit court of the United States, concurrent with the courts of the state. The amount of damages which plaintiff shall recover in an action for rejecting his vote for a member of Congress is peculiarly appropriate for the determination of a jury, and therefore when the damages are laid at the sum of $2,500, no opinion of the court upon that subject can justify it in holding that the amount in controversy is less than the sum or value of $2,000, so as to be insufficient to support the jurisdiction of the circuit court of the United States. An allegation that the plaintiff was a duly qualified elector, but without any allegation that he was ever registered as such, is insufficient to state a cause of action for unlawfully rejecting his vote, under S. C. Const. art. 8, 3, and Rev. Stat. 1893, § 132, making it necessary to be registered in order to be entitled to vote. A voter who does not allege that he ever was registered or ever made any application to be registered, but who, so far as appears, may have been entitled to apply for registration, is not in a position to impugn the constitutionality of a statute for registration on the ground that it in effect required a longer residence in the county than was required by the Constitution of the state, and otherwise unreasonably impeded the exercise of the constitutional right of voting. [No. 2.] Submitted October 11, 1898. Ordered for oral argument October 24, 1898. Argued December 8, 1899. Decided October 15, 1900. N ERROR to the Circuit Court of the United States for the District of South Carolina to review a decision dismissing a complaint in an action to recover damages for rejecting a vote for member of Congress. Affirmed. Statement by Mr. Justice Gray: This was an action brought March 11, 1895, in the circuit court of the United States for the district of South Carolina, by a resident of the city of Charleston in that state, against the board of managers of a general election at a ward and precinct in that city, to recover damages in the sum of $2,500 for wrongfully and wilfully rejecting his vote for a member of the House of Representatives of the United States for the state of South Carolina on November 6, 1894. The allegations of the complaint were as fol lows: wilfully, and injuriously refused to permit the said plaintiff to vote at said precinct and at said Federal election which was there held according to law, on said 6th day of November, 1894, for one of the candidates for member of said House of Representatives of the United States for the state aforesaid; and lawful cause or excuse, rejected the plainwrongfully and wilfully, and without any tiff's said vote; to his damage $2,500. "Wherefore the plaintiff demands judg ment against the defendants for the said sum of $2,500, and for the costs of this action." The defendants demurred to the complaint upon the following grounds: First. That the court had no jurisdiction of the action, because it did not affirmatively appear on the face of the complaint that a Federal question was involved; and because it appeared on the face of the complaint that a verdict for $2,000 would be so excessive that the court would be required to set it aside. "I. That the plaintiff is and was on the 6th day of November, 1894, a resident of the city and county of Charleston, in the state of South Carolina; and that he had been a Second. That the complaint did not state resident of said state for a period of more facts sufficient to constitute a cause of acthan twelve months next preceding said 6th tion, because, by § 2008 of the Revised Statday of November, 1894, and a resident of utes of the United States, an action must be said city and county for more than sixty brought for a penalty, and not for damages; days next preceding said day; and that un- and because the complaint did not state facts der the Constitution and laws of the said sufficient to constitute a cause of action, state of South Carolina and the Constitution either under that statute, or at common law. and laws of the United States the said plainThe court, without considering the other tiff is, and was at the time aforesaid, twenty-grounds, sustained the demurrer and disone years of age, and is and was in every missed the complaint because it did not state other respect a duly qualified elector of said facts sufficient to constitute a cause of acstate, and is and was on the said 6th day*of tion, in that it failed to state that the plainNovember, 1894, entitled to vote for a mem- tiff was a duly registered voter of the state ber of the House of Representatives of the of South Carolina. The plaintiff sued out a United States from said state of South Caro-writ of error from this court. lina. "II. That the defendants were on the day and year aforesaid the board of managers of the Federal election, at the first election precinct in the sixth ward of said city of Charleston, in said county and state; that, as the plaintiff has been informed and believes, the said defendants were duly appointed and qualified as such managers; and that they were present at the polling place in the said election precinct on the said 6th day of November, 1894, and during all the time the polls were opened on said day were there, acting as such board of managers of the Federal election. The material parts of the Constitution and laws of South Carolina, referred to in argument, are stated in the margin.† In the Constitution of 1868 the 1st article, entitled "Declaration of Rights," contains the following provisions: "Sec. 31. All elections shall be free and open, and every inhabitant of this commonwealth, possessing the qualifications provided for in this Constitution, shall have an equal right to elect officers and be elected to fill public office." "Sec. 33. The right of suffrage shall be prohibiting, under adequate penalties, all undue intected by laws regulating elections, and pro fluences from power, bribery, tumult, or improper conduct." The 8th article of the same Constitution, en titled "Rights of Suffrage," contains the following provisions: "Sec. 2. Every male citizen of the United States, of the age of twenty-one years and up "III. That the proper election precinct at which the said plaintiff was entitled to vote is the said first precinct in the sixth ward of the city and county of Charleston, in the state aforesaid; and that on the said 6th day of November, 1894, and while the polls were open for voting purposes, the said plaintiff presented himself at the polling place in said election precinct, and then and there offered to vote and cast his ballot for one of the candidates for the office of member of the House of Representatives of the United States for the state of South Carolina in the Fifty-fourth Congress; and the plaintiff fur-submitted to the electors at any elections: Prother avers that he then and there had ready the proof of his qualifications as such Federal elector as aforesaid. "IV. That the said defendants unlawfully, wards, not laboring under the disabilities named In this Constitution, without distinction of race, color, or former condition, who shall be a resi dent of this state at the time of the adoption of this Constitution, or who shall thereafter reside in this state one year, and in the county in which he offers to vote sixty days, next preceding any election, shall be entitled to vote for all officers that are now or hereafter may be elected by the people, and upon all questions vided, that no person shall be allowed to vote or hold office who is now or hereafter may be disqualified therefor by the Constitution of the United States, until such disqualification shall # Mr. Charles A. Douglass for plaintiff |gress of the United States is not derived in error. Mr. W. A. Barber for defendants in error. Mr. Justice Gray, after stating the case as above, delivered the opinion of the court: This case involves the construction and application of the Constitution of the United States, and is therefore rightly brought directly from the circuit court of the United States to this court, under the act of March 3, 1891, chap. 517, § 5, cl. 4 (26 Stat. at L. 828). merely from the Constitution and laws of the state in which they are chosen, but has its foundation in the Constitution of the United States. This is clearly and amply set forth in Ex parte Yarbrough, 110 U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152, in which this court, speaking by Mr. Justice Miller, upheld a conviction in a circuit court of the United States under §§ 5508 and 5520 of the Revised Statutes for a conspiracy to intimidate a citizen of the United States in the exercise of his right to vote for a member of Con The right to vote for members of the Congress, and answered the proposition "that be removed by the Congress of the United States: Provided, further, that no person while kept in any almshouse or asylum, or of unsound mind, or confined in any public prison, shall be allowed to vote or hold office. "Sec. 3. It shall be the duty of the general assembly to provide from time to time for the registration of all electors." "Sec. 7. Every person entitled to vote at any election shall be eligible to any office which now is, or hereafter shall be, elective by the people in the county where he shall have resided sixty days previous to such election, except as otherwise provided in this Constitution or the Constitution and laws of the United States. "Sec. 8. The general assembly shall never pass any law that will deprive any of the citizens of this state of the right of suffrage, except for treason, murder, robbery, or dueling, whereof the person shall have been duly tried and convicted." This section was amended in 1882 by substituting, for the word "robbery," the words "burglary, larceny, perjury, forgery, or any other infamous crime." The Revised Statutes of South Carolina of 1893 contain the following provisions: general election, when the same shall be closed until such general election shall have taken place." Section 138 requires the books of registration to be deposited and safely kept in the office of a certain clerk or registrar. "Sec. 139. The supervisor shall determine as to the legal qualifications of all applicants for registration by summary process, requiring oath, evidence, or both, if he deem proper, subject to revision by the assistant supervisors and himself in all cases where he has refused to register an applicant. From their decision any applicant who is rejected shall have the right to a review thereof by the circuit court, provided he give notice in writing to the supervisor of his application for such review, and the grounds thereof, within five days from the date of his rejection, and commence his proceedings within ten days from the service of said notice. "Sec. 140. Any person coming of age, and otherwise qualified as an elector may appear before the supervisor on any day on which the books are opened as aforesaid, and make oath (which the supervisor is hereby authorized to administer) as to his name, age, occupation, and place of residence; and if the supervisor find him qualified, he shall enter his name upon the registration book of the precinct in which he "Sec. 162. The general elections for Federal, state, and county officers in this state shall be held on the 1st Tuesday following the 1st Monday in November in every second year, reckon-resides. Such person shall have the right of ing from the year one thousand eight hundred and seventy." "Sec. 131. Every male citizen of the United States, of the age of twenty-one years and upwards, not laboring under the disabilities named in the Constitution, without distinction of race, color, or former condition, who shall have been a resident of the state for one year, and in the county in which he offers to vote for sixty days, next preceding any general election, shall be entitled to vote: Provided, that no person, while kept in any almshouse or asylum, or of unsound mind, or confined in any public prison, or who shall have been convicted of treason, murder, burglary, larceny, perjury, forgery, or any other infamous crime, or dueling, shall be allowed to vote. "Sec. 132. All electors of the state shall be registered; and no person shall be allowed to vote at any election hereafter to be held, unless he shall have been heretofore registered in conformity with the requirements of chapter 7 of the General Statutes of 1882, and acts amendatory thereof, or shall be registered as herein required." Sections 133-136 provide for the appointment of a supervisor and two assistant supervisors of registration in each county, and establish registration precincts. "Sec. 137. After every general election the registration books shall be opened, for registration of such persons as shall thereafter become entitled to register, on the 1st Monday in each month, until the 1st day of July preceding a appeal, as provided in the last section, if the supervisor shall not find him qualified. "Sec. 141. In case a person shall not be of age to qualify him as an elector on the day of the closing of the books of registration before any general election, but shall be of such age as will qualify him as such elector before the said general election, and shall appear before the supervisor of registration and take oath thereto, the supervisor, if he shall find him qualified, shall enter his name upon the registration book as aforesaid." Section 142 provides that "each elector reg istered as aforesaid shall thereupon be furnished by the supervisor with a certificate which shall contain a statement of his age, occupation, and place of residence, as entered in the said registration book, and which certificate shall be signed by the sald supervisor; and no person shall be allowed to vote at any other precinct than the one for which he is registered, nor unless he produces and exhibits to the managers of election such certificate;" and the form of such certificate is prescribed. By sections 146-149 an elector who changes his place of residence must surrender his certif cate of registration and take out a new certif cate; and by section 150, if an elector loses his certificate he may, upon application made at least thirty days before the next general election, and upon complying with certain stringent provisions as to proof of the loss, obtain a new certificate. 89 the right to vote for a member of Congress | ficers to recover damages for their rejection is not dependent upon the Constitution or laws of the United States, but is governed by the law of each state respectively," as fol lows: is: of the plaintiff's vote for a member of the House of Representatives of the United States. The complaint, by alleging that the plaintiff was at the time, under the Constitution and laws of the state of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the state, shows that the action is brought under the Constitution and laws of the United States. The damages are laid at the sum of $2,500. What amount of damages the plaintiff shall recover in such an action is peculiarly appropriate for the determination of a jury, and no opinion of the court upon that subject can justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the circuit court. Barry v. Edmunds, 116 U. S. 550, 29 L. ed. 729, 6 Sup. Ct. Rep. 501; Scott v. Donald, 165 U. S. 58, 89, 41 L. ed. 632, 638, 17 Sup. Ct. Rep. 265; Vance v. W. A. Vandercook Co. 170 U. S. 468, 472, 42 L. ed. 1111, 1112, 18 Sup. Ct. Rep. 674; North American Transp. & Trading Co. v. Morrison, 178 U. S. 262, 267, 44 L. ed. 1001, 20 Sup. Ct. Rep. 869. The circuit court therefore clearly had jurisdiction of this action, and we are brought to the consideration of the other objections presented by the demurrer to the complaint. "But it is not correct to say that the right to vote for a member of Congress does not depend on the Constitution of the United States. The office, if it be properly called an office, is created by that Constitution, and by that alone. It also declares how it shall be filled, namely, by election. Its language "The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.' Art. 1, § 2. The states, in prescribing the qualifications of voters for the most numerous branch of their own legislatures, do not do this with reference to the election for members of Congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the Constitution of the United States says the same persons shall vote for members of Congress in that state. It adopts the qualification thus furnished as the qualification of its own electors for members of Congress. It is not true, therefore, that electors for members of Congress owe their right to vote to the state law in any sense which makes the exercise of the right to depend exclusively on the law of the state." 110U.S. 663, 28 L. ed. 278, 4 Sup. Ct. Rep. 152. The court then, referring to the statement of Chief Justice Waite in Minor v. Happersett, 21 Wall. 162, 178, 22 L. ed. 627, 631, that "the Constitution of the United States does not confer the right of suffrage upon any one," explained that statement as follows: "But the court was combating the argument that this right was conferred on all citizens, and therefore upon women as By the Constitution of South Carolina, well as men. In opposition to that idea, it every male citizen of the age of twenty-one was said the Constitution adopts as the years and upwards, who has resided in the qualification of voters for members of Con-state for one year, and in the county where gress, that which prevails in the state where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or class of persons by the Constitution alone, because you have to look to the law of the state for the description of the class. But the court did not intend to say that, when the class or the person is thus ascertained, his right to vote for a member of Congress was not fundamentally based upon the Constitution, which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors." 110 U. S. 664, 28 L. ed. 278, 4 Sup. Ct. Rep. 152. The circuit court of the United States has jurisdiction, concurrent with the courts of the state, of any action under the Constitution, laws, or treaties of the United States, in which the matter in dispute exceeds the sum or value of $2,000. Act of August 13, 1888, chap. 866 (25 Stat. at L. 433). This action is brought against election of The objection that the only remedy in that court was by suit for a penalty under § 2008 of the Revised Statutes is answered by the repeal of that section, before this action was brought, by the act of Congress of February 8, 1894, chap. 25 (28 Stat. at L. 36). But the objection that the complaint failed to state that the plaintiff was a duly registered voter of the state of South Carolina (which was the ground of the judgment below in favor of the defendants) is a more serious one. he offers to vote for sixty days, next preceding any election, and is not disqualified by the Constitution of the United States, nor of an infamous crime or of dueling, is entia lunatic or a prisoner, nor been convicted tled to vote for all officers elected by the people. Art. 1, § 31; art. 8. §§ 2, 8. That Constitution, in art. 8, § 3, also makes it the duty of the legislature to provide from time to time for the registration of all electors. The Revised Statutes of South Carolina of 1893 provide, in § 131, that every man not laboring under the disabilities named in the Constitution of the state (repeating all the qualifications and the disabilities mentioned in that Constitution) shall be entitled to vote; and further provide, in § 132, that all electors of the state shall be registered, and that no person shall be allowed to vote at any election unless theretofore registered as required by those statutes or by previous laws. The Constitution and the laws of the state thus require that, in order to entitle |