El Modello Cigar Manufacturing Co. v. Gato , 25 Fla. 886 ( 1889 )

Appellants filed a bill for a rehearing, which was denied.

Maxwell, J.:

Appellants are not satisfied with the decis* ion in this case, and they now come with application for a rehearing, based on mistakes of the court in the opinion rendered.

The first mistake complained of is in relation to a statement of the court respecting allegations of appellants in regard to climatic and atmospheric conditions in Key West, as adapted to the manufacture and preservation of cigars. The court asked in argument why did appellants “aver in the answer that the atmosphere in Key West was not more favorable for the manufacture and preservation of cigars than at points north of place,” &e. So far as we can see this is but hypercritical, in that the word “ aver ” was used instead of the word “deny.” Whether it was an averment or denial made no difference as to the question then under discussion, of intention to injure complainant by the use of simulative words and brands.

The next ground for rehearing is, that “ there is no allegation in the bill or answer, nor is there any proof that G. H. Gato was the junior member of the firm of the El Modelo (ligar Manufacturing Company, yet the court, in its opinion, asked why did they use the name of the junior member of the firm in combination with the words ‘ Key West,’ ‘La Estella ’ and ‘ Bouquet.’ ” With all due respect to counsel, this seems simply frivolous. G. H. Gato was spoken of as the junior member of the firm because in the list of four partners his name appeared last. But whether he was a junior or other member did not affect the question involved in the use of his name, the impressive fact being that his name was used, instead of any other of the four, or of the firm name, to direct attention to the brand of cigars.

The third ground for rehearing is, that there was a mistake of the court in reference to the La Estella brand of cigars, in saying that the defendants “ admit the allegations of the bill to be true, that is to say, that they intended to deceive the public, profit by the deception, and to injure the complainant.” The paragraph of the opinion in which this sentence occurs, taken altogether, is such as to render the sentence susceptible of reference to the admission of defendants under their demurrer to the bill. ' In this view the statement is correct. But without regard to that, and even if the mistake is a substantive one, it cannot affect the conclusion of the court, for there is still the “ Bouquet” brand not 'touched by this mistake, which furnishes sufficient ground for that conclusion.

A rehearing is denied.