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company.

There can be no possible idea of sending baggage by passenger question that, aside from special circum- trains, separate from the passengers, as stances indicating the actual or implied the height of absurdity, unless, perhaps, consent of the company to allow the bag- where the company had been in fault in gage of the passenger to go npon a differ- not forwarding it at the proper time, or ent train from that on which the passen- by having sent it in the wrong direcger himself yoes, there is no obligation tion. But there is no doubt it would be whatever to carry the baggage at all, entirely competent for the company to except in the usual mode for special com- assume a special undertaking of this pensation. It is of the very essence of character. And where the servants of the implied stipulation on the part of the the company, being informed of the fact company to carry a reasonable amount of that the passenger did not intend going personal baggage with their passengers, by the same train, in consequence of bethat it shall go upon the same train with ing delayed, or having gone before, or them. The care which the passenger him- for any other reason, understandingly self exercises over the baggage is of the accept baggage, to go in the passenger greatest importance to its security. In train, without any accompanying pasEngland, when the passenger changes senyer, we are not prepared to say that from one main line to a branch line, in the payment of the price of transportaorder to reach another main line, he is tion should make any difference in realways expected to point out his baggage, gard to the duty or responsibility of the and if he do not, is specially inquired of company. It is hardly to be supposed if he have any, and if so, requested to that the company would undertake any point it out, and if he fail to do it, is sure such office as a mere gratuity, unless for to fail of finding his luggage at the end some of its officers, agents, or cmploy. of his route.

Under such circumstances The very fact of undertaking the there would not be the slightest safety duty by the servants of the company, in trusting luggage to go by any mere without any additional compensation, passenger train without some one to look would seem to indicate very clearly that after it. Perhaps this uncertainty is they understood the service was compensomewhat peculiar to England, or the sated by the fare paid by the passenger. United Kingdom of Great Britain, since How far the servants and employees of a here the companies never give any check railway company could fairly be regarded for laggage, as they call it, while upon as acting within the scope of their emthe Continent the companies all give ployment in making such an extraordiformal receipts or bills of lading for nary contract, seems to us very quesbaggage, and checks are also given by tionable. Unless the company had been our companies which have the same in fault in regard to the transportation, force.

so that it had become their duty to see it This consideration of giving a check carried, and their servants were thereor bill for the baggage is of some import- fore strictly in the line of their duty in ance in regard to the responsibility of the forwarding it, in which case they would companies. As a general thing, railway unquestionably have the power to bind companies never do this, except in con- the company in selecting the mode of nection with a ticket for passage. In all conveyance; unless this or some exother cases, the baggage must go by ex- ceptional case were presented, it seems press, or by the parcels office, as the ex- to us, as we said, very questionable how presses are called in Europe. We think far the servants of a railway company most railway companies would scout the could be said to act within the scope of

Vol. XVII.-26

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their authority in forwarding baggage and to give a check accordingly, it does by passenger train without the owner not seem to us that this ought to be regoing at the same time. It is certainly garded as a gratuitous undertaking, and well understood by all persons at all 60 not binding the company as common conversant with the subject (and all who carriers. We should certainly regard deal with servants are bound to learn the them, in that precise case, as common general course of the business), that this carriers for hire, although 'no separate is not the common course of forwarding price was paid for the baggage, but only baggage; and that being so, any one de- the ordinary fare for the passenger and siring to have his baggage forwarded in his baggage. It seems to us more natuthat mode must be assumed to under- ral to treat the contract of the company stand that this is not within the ordi- as only extending to the waiver of their nary scope of the servants' employment, right to have the baggage go in the same and by consequence, that they have no train with the passenger, than to the authority to bind the company by any waiver of all compensation for the transsuch undertaking.

portation, that being at variance with But if the general superintendent of the entire scope of their creation and acthe railway should direct the servants tion; the other being only a modificaof the company, in a particular in- tion in a very slight but not altogether stance, to forward baggage in this mode, unimportant particular. I. F. R.

Supreme Court of Missouri.

GILES F. FILLEY, RESPONDENT, v. A. D. FASSETT ET AL., APPELLANTS.

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The complainant having first appropriated and applied the name of “ Charter Oak” to a certain pattern of stoves manufactured and sold by him, will be protected by injunction in the exclusive use of the name as a trade-mark.

Any contrivance, design, device, name, or symbol, which points out the true source and origin of the goods to which it is applied, or which designates the dealer's place of business, may be employed as a trade-mark, and the right to its exclusive use will be protected by the courts.

The appropriation of any prominent, essential, or vital feature of a trade-mark by another, is an infringement. If the trade-mark is simulated in such manner as probably to deceive customers, the piracy may be checked by injunction.

The statute of Missouri providing for the filing of a description of any trademark sought to be used, was not designed to abridge or weaken the right to any trade-mark which may be acquired in the usual way. It does not authorize the appropriation by one party of a trade-mark the title and ownership of which belongs to another.

APPEAL from St. Louis Circuit Court.

In 1851 the plaintiff employed N. S. Vedder, stove-pattern maker of Troy, N. Y., to design and construct for him a set or series of cooking-stove patterns. The patterns were made as

ordered, and in a form which resulted in the production of a cooking-stove of a new and improved interior arrangement and construction, for which Vedder obtained letters patent, which he assigned to the plaintiff. The plaintiff originated and applied to the stove the name “Charter Oak,” which was so formed upon the patterns as to produce the name upon the manufactured article, in combination with a sprig of oak leaves. This name and device was employed to distinguish and designate cookingstoves of the plaintiff's manufacture. The manufacture and sale commenced the following year, and has been followed up continuously ever since.

The testimony showed that stoves are usually known in the trade by their distinctive names, such as “Excelsior,” “ Climax," “ Empire," “ Charter Oak,” &c.; and that they are advertised and bought and sold by such names and designations; that when a stove is favorably received and acquires popularity in the market, the peculiar name by which it is known becomes a matter of importance to the manufacturer, and of great value to him in the prosecution of his business.

The answer denied that the plaintiff first appropriated and used that name in such connection, as indicating the source and origin of the article to which it was applied; and denied that his use of it had been either exclusive or uninterruptedly continuous; and averred that the contrary of all this is true.

C. L. R. Moss, for appellants.

Samuel S. Boyd, for respondent.

The opinion of the court was delivered by

CURRIER, J.-Upon the issues a large mass of testimony was taken, from which the following facts are deduced :

1. That the plaintiff's appropriation of the name “Charter Oak," as already detailed, was prior in point of time to any similar use of that name by any other parties. The testimony is clear and entirely satisfactory on this point.

2. That notwithstanding such appropriation by the plaintiff, different manufacturers in Cincinnati, and in that region, at different times subsequently to 1852, applied the same name to cooking-stoves of their manufacture, but without the consent of the plaintiff in any instance, and without his knowledge, except

in two instances. The first of these two occurred in 1854, and was at once checked by the plaintiff, and abandoned by the Cincinnati manufacturer on being apprised of the plaintiff's rights. The other is that of the manufacture of stoves, the sale of which, with the plaintiff's alleged trade-mark upon them, is sought to be enjoined by this suit; and the suit was commenced immediately after the facts came to the knowledge of the plaintiff.

3. That J. S. & M. Peckham, of Utica, Oneida county, N. Y., manufactured in Utica a “Charter Oak” cooking-stove, from 1852 to 1857, and then abandoned it, and never after resumed the manufacture of that particular stove. The Peckhams purchased their patterns for this stove of said N. S. Vedder, Filley consenting to the sale on condition certain alterations were first made in the patterns. This transaction does not appear to have included specifically the right to use the plaintiff's trade-mark, nor does it

appear that Filley was ever made aware that the purchasers in fact used it. The design of the stove was patented, and the transaction with the Peckhams involved the granting to them the right to manufacture in Oneida county its patented features. That, with the right to sell in a defined territory, would seem to have constituted the inducement to the purchase of these patterns rather than others. The particular name which the plaintiff had originated for the stove which he proposed to make does not appear to have been mentioned in the negotiations with the Peckhams, or to have been in the minds of the parties. It ought not therefore to be inferred from the mere permission granted to Vedder to sell the modified patterns that the plaintiff licensed or sold out the use of his trade-mark, particularly in a contest with third parties, the Peckhams themselves disavowing all right, claim, or interest in the trade-mark, either as originators or purchasers.

4. That the plaintiff's use of the trade-mark claimed by him has been continuous and uninterrupted since the first adoption by him to the present time.

The fact that parties in Cincinnati or elsewhere manufactured “ Charter Oak” stoves and sent them into the market to compete with the plaintiff's manufactures, in no way aids the defence, unless it appears that the plaintiff assented to or acquiesced in such infringements upon his rights; and, as already indicated, there is nothing in the case to establish a dedication or abandon. ment to the public on the part of the plaintiff of his supposed rights of property in the alleged trade-mark. There is no testimony having that tendency, except the transaction with the Peckhams, and that is insufficient. In Gillott v. Esterbrook, 47 Barb. 455, it appeared that an imitation of the plaintiffs' mark had been in use for many years, and that for twenty years he had issued printed “cautions” to the public on the subject, implying knowledge on his part of such use, but that was held no acquiescence, although the plaintiffs had neglected to institute prosecutions.

The depredations of others on plaintiff's rights furnish no excuse to the defendants for similar acts on their part. It is rather an aggravation to the plaintiff that others have also injured him. And courts have not shown any disposition to encourage that line of defence. WOODBURY, J., in Taylor v. Carpenter, 2 Wood. & Minot 8, held this language: “There is something abhorrent in allowing such a defence to a wrong which consists in counterfeiting others' marks and stamps, defrauding others of what had been gained by their industry and skill, and robbing them of the fruit of their good name, merely because they have shown forbearance and kindness.” See observations of STORY, J., same case, 3 Story's R. 464.

After this suit was commenced, Rosenbaum & Co., who seem to be the real parties defending against the action, made an attempt to appropriate the disputed trade-mark to their own use, in due form of law, by filing in the office of the recorder of deeds in the county of St. Louis a written claim thereto, under the Act of March 1866, Gen. Stat. 912. A certified copy of the paper so filed, declaring that said Rosenbaum & Co. had adopted " Charter Oak” as their trade-mark for stoves manufactured by them was given in evidence, and relied upon as showing their title to the trade-mark as against Filley, who had never filed any such document. If this proceeding can be made available for the purpose intended, it may be regarded as an entirely new and improved method of disposing of trade-mark cases, and of appropriating the property of others, the subject of such suits, without risk or inconvenience, and at very slight cost.

A glance at the statute, however, shows that it was intended for no such purpose. It was not designed in the slightest particular to weaken or abridge any existing rights, or any future right to a trade-inark which might be acquired in the usual way,

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