Putnam Nail Co. v. Dulaney ( 1891 )

Opinion,

Mr. Chief Justice Paxson:

The court below sustained the defendant’s demurrer, and dismissed the plaintiff’s bill. It was evidently intended as a trade-mark bill. Yet the case lacks every element of a trademark. There is no trade-mark shown nor alleged which it is charged the defendant has pirated. On the contrary, the bill alleges that the plaintiff manufactures a peculiar kind of horseshoe nail. It is known to the trade as a bronzed nail, being covered with a coating of bronze. If is not alleged they are any better for being bronzed, but they are more popular, and sell more readily. The bill charges that the defendant is selling a precisely similar nail; that it is bronzed like those of plaintiff’s, to deceive purchasers and induce them to purchase them as plaintiff’s nails. The defendant has not imitated its label, for it has none. He has not even imitated the plaintiff’s manner or style of putting up its packages. There is nothing beyond the mere averment that he makes a similar nail.

We have never yet carried the doctrine of trade-marks to the extent claimed for it by the plaintiff. We have never hesitated to restrain the imitation of a trade-mark, when the- facts justified it. We are now asked to go one step further, and protect the manufacture of the article itself. This we do not see our way clear to do. The manufacture of a particular article can only be protected by a patent. The law in regard to trademarks should not be pushed to the extent of interfering with manufactures. A man may make any article be pleases that is not protected by a patent. He may make a horse-shoe nail, or any other unpatented article, precisely like that of any other manufacturer; he may imitate it so perfectly that the one may he mistaken for the other, but he may not sell his own article as and for that of another, by means of a trade-mark in imitation of the trade-mark of such other person. Some of the cases cited go so far as to restrain one manufacturer from imitating the style, form, and size of the packages of other manufacturers. We need not discuss these cases, as they are not applicable. Our attention has not been called to any case which is authority for plaintiff’s claim. We think judgment was properly entered for the defendant upon the demurrer.

The decree is affirmed, and the appeal dismissed at the costs of the appellant.

On May 4, 1891, a motion for a re-argument was refused.