Hohenstein v. Perelstine , 37 Pa. Super. 540 ( 1908 )

Opinion by

Head, J.,

In reviewing the record of an appeal from a decree in equity it is not our province to find, for ourselves, the facts from the testimony as it appears on the printed pages of the paper-books. When we have ascertained that the conclusions of fact reached by the trial court rest upon sufficient evidence and the record discloses no manifest error in their deduction from the evidence, our duty in this respect has been fully discharged.

There was evidence that one David Carter had been engaged, for perhaps twenty-five years, in the retail shoe trade in the city of Pittsburg. That he had especially sought to secure the patronage of those who desired a comfortably fitting shoe, easy for tender feet, rather than of those who required that their footwear should conform to the latest mode of the fashion. To accomplish his purpose he selected a shoe, somewhat unusual in appearance because of its marked width across the toe; had them manufactured in such qualities of material as suited his trade; had them stamped “The Carter Shoe,” and under that name extensively advertised and sold them.

When he retired from business, a few years before the filing of this bill, the plaintiffs, or one of them, secured from him such rights as he could give to continue the advertisement and sale of the same shoes marked with the same stamp and under the same name that had been used by him. >

That the business, owned by the plaintiffs at the time the bill was filed, had been carried on by Hohenstein, one of them, for some years prior to 1901, in a room or rooms, on the corner of Smithfield street and Third avenue, in the city of Pittsburg. That in the spring of that year he removed to the opposite corner of the same streets, and the premises vacated by him were then occupied by the defendants, also engaged in the retail shoe trade.

There is evidence, although it is contradicted, that the defendants began to sell broad toed shoes, resembling those handled by plaintiffs, advertising them in their show windows and on the exterior walls of the building as “The Carter Shoe.” The plaintiff, Hohenstein, then sought the protection of the Act of June 20, 1901, P. L. 582, and registered, as his trademark, the word “Carter,” with the device described in his certificate, and upon receipt of the latter, notice was given to the defendants. The use of the public signs, already mentioned, was then abandoned, but the defendants continued the sale of the same shoes having first had them marked, on the ribbon or strap attached to each shoe, “The Captain Carter Foot Form Shoe.” But there is evidence, although again it is contradicted, that in making sales, the employees of the defendants continued to describe and designate, to purchasers, their shoes as “The Carter Shoe.” This bill was then filed.

All of these facts have been found by the learned court below, and in so far as the appellants complain of such findings, their complaint is answered by the following language taken from the opinion of Mr. Justice Stewart in the recent case of Portuondo Cigar Mfg. Co. v. Cigar Mfg. Co., 222 Pa. 116, — where the whole subject of the infringement of trademarks was extensively considered, viz.: “It maybe conceded that some of the specific facts found by the court are fairly disputable; but none are without support in the evidence, certainly none which might be regarded as material. The findings with respect to those disputable are not open to review, except as manifest error is shown, and that is not the case with respect to any of them.”

A consideration of the entire line of conduct pursued by the defendants, as manifested in the facts found, can hardly fail to leave the impression that they persistently sought to secure, for themselves, some of the benefits, real or fanciful, which they must have assumed attached to the use, in some form, of the word “Carter,” in connection with the sale of the shoes they desired to put upon the market.

As to the law applicable to the facts found, we think it sufficient to say that, in our judgment, the opinion filed by the learned trial judge and the authorities therein cited, vindicate the conclusions he has reached and the decree he has entered. His position is still further strengthened by the following language taken from the latest utterance of the Supreme Court, in the case last cited, viz.: “The general rule is that anything done by a rival in the same business, by imitation or otherwise, designed or calculated to mislead the public in the belief that in buying the product offered by him for sale, they were buying the product of another’s manufacture, would be in fraud of that other’s rights, and would afford just grounds for equitable interference.”

An examination of the whole record disclosing no reversible error, the assignments must all be dismissed.

Decree affirmed. .