Appendix — Brougham v. Blanton Mfg. Co.

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No. 4585

United States Circuit Court of Appeals

EIGHTH CIRCUIT

JAMES J. BROUGHAM et al.

Appellants

vs.

BLANTON MANUFACTURING COMPANY

Appellee

Appeal from the District Court of the 'Inited States

for the Eastern District of Missouri

STATEMENT AND BRIEF FOR APPELLEE

S. MAYNER WALLACE

SHEPARD BARCLAY

Attorneys and of Counsel for Appellee

|

Copy of within Statement and Brief received this first

day of December, 1916

ARTHTR L. OLIVER,

Of Counsel for Appeliants

IN THE

United States Circuit Court of Appeals

EIGHTH CIRCUIT

JAMES J. BROUGHAM et al. .

Appellants

0) . No. 4585

BLANTON MANUFACTURING

COMPANY

Appellee J

STATEMENT OF THE CASE FOR APPELLEE

This is a suit in equity wherein appellee, as plaintiff,

obtained a decree against the defendants (who are the

local officers at St. Louis, Missouri, in charge of the

federal Bureau of Animal Industry in that City) per-

petually enjoining them from attempting to deprive

plaintiff of the use of its trade-mark ‘‘Creamo’’, as

upplied to oleomargarine manufactured by plaintiff in

St. Louis and shipped into other States as part of in-

terstate commerce.

The case made by the bill will, for greater brevity,

be outlined shortly, along with the faets in evidence,

tue most of which are undisputed.

The answers of defendants admit

‘that plaintiff has been for many vears, and is

now, a manufacturer of oleomargarine; that plaint-

»

HY has sold oleomargarine and offered it for sale

in packages of various sizes and labeled or marked

with the trade label or stencil *Creamo’ ” (Ree,

p. 14).

The answers then disclaim any knowledge of the

value of plaintiff's trade-mark or of its prior approv-

als alleged, as well as any kine wledge of many other

facts averred by plaintiff; and then for defense set up

that the Secretary of Agriculture (as the head of the

Department of which the Bureau of Animal Industry

forms a part) has been willing to approve the label

of plaintiff

providing plaintiff would place upon said label

suitable words indicating that the words *Creamo

Oleomargarine’ constitute merely a trade name or

brand, and the Seeretary of Agriculture offered to

approve said label modified so as to read *Creamo

Brand Oleomargarine’, providing said label should

he used only upon oleomargarine containing not

less than 10 per cent of cream’? (Ree., p. ca}

It is then alleged in the answer that

plaintif® has refused to modify its said label as

requested by the Secretary of Agriculture, and that

plaintiff has used said label upon its said oleomar

garine as aforesaid, for the purpose of deceiving

and eausing the purchasers thereof to believe that

the said oleomargarine produced by it is made

from and contains a substantial quantity of cream;

and plaintiff by the use of said labels, and by the

use of advertising matter and letterheads sent to

its customers, has sueceeded in inducing the beliet

on the part of said customers that said oleomar-

garine is manufactured from and contains a sub-

stantial quantity of cream, whereas in truth and in

fact large quantities of the oleomargarine manu-

factured and sold by plaintiff under said label and

trade name has contained no cream, and such of its

product as has contained eream not over 10 per

cont of cream, and all of its product, both that con-

taining cream and that containing no cream, has

been sold under the same label and trade-mark de-

scribed in the bill of complaint.

And defendants say that because of the facts

aforesaid, the said label, as so used by plaintiff,

is deceptive and misleading, and that the Seere-

tary of Agriculture, in exercising the diseretion

and judgment vested in him by law, has determined.

that said label is deceptive and misleading, and

in consequence thereof has disapproved of said

label and its use in connection with the manufae-

ture and sale of plaintiff’s said product’’ (Ree.,

p. 18).

The answer then recites that defendants, as officers

of said Bureau, notified plaintiff that the use of said

‘*trade name and label would not be allowed after the

Ist day of Mareh, 1914,’’ but intended that plaintiff

thereby should understand that after said date defend-

ants would refuse to attach to packages of such manu-

facture the Government stamp of inspection, ete., (Ree.,

yp. 18).

A provisional rule to show cause was duly issued

(Ree., pp. 13-14) and the suit came on later for trial

before his Honor, Judge Davip P. Dyer, at which time

plaintiff introduced considerable testimony in support

of the ease made by its bill.

Plaintiff’s Case

Plaintiff is duly incorporated as a manufacturing

company, and has been for many vears engaged in the

pat ae

manufacture of oleomargarine in the City of St. Louis.

In that business plaintiff and its commercial predeces-

sors have been using since about 1902 (Ree., p. 33)

a trade-mark, to designate the oleomargarine of its

manufacture: the word ‘‘Creamo’’, always used in con-

nection with the name of oleomargarine to de-

scribe the product on or to packages of which said

trade-mark is attached or affixed, in trade, and

specifically in interstate commerce earried on by

plaintiff with customers in many other States outside

of Missouri.

Long before the enactment of the Act of Congress

of June 30, 1906 (34 Stat. 674) for inspection of *‘meat

and meat food products’’, plaintiff had adopted and

used this trade-mark ‘‘Creamo”’ on packages of its

oleomargarine under the regulations of the CommMts-

SIONER oF INTERNAL ReveNnve (approved by the Secre-

tary of the Treasury) to whom was entrusted by the

Act of Aug. 2, 1886 (24 Stat. 209) the making of reg-

ulations to govern the marking, stamping and brand-

ing of the packages in which such oleo was contained

for sale (Sec. 6, Act Aug. 2, 1886).

The trade-mark ‘‘Creamo’’ was approved by the

Commissioner of Internal Revenue as a brand for oleo-

margarine, which appears by his letter in evidence

(Ree., p. 29) of date, January 19, 1904, to the U. 5.

Internal Revenue Collector at St. Louis, through whom

the application for approval was made.

Afterwards the Department of Agriculture, during

the administration of Mr. Secretary James WILSON

(Ree., p. 82), by letter to plaintiff from the local in-

spector in charge of the Bureau of Animal Industry

‘n St. Louis, under orders of his superior, May 24, 1907

(Ree., pp. 30-31), approved the trade label ‘‘Creamo

a ee

Oleomargarine’’, and again, in the same way, the De-

parment gave an equally direct and emphatic second

epproval, July 8, 1912 (Ree., pp. 12, 46). The plaint-

iff after such approval by both Departments

applied on January 6, 1908, for registration of its

trade-mark (‘*Creamo” for oleomargarine) at the Pat-

ent Office of the United States (Ree., p. 46) and regis-

tration was duly accorded June 9, 1908, as appears by

the certificate and record thereof in evidence (Ree., p.

47).

Plaintiff had duly paid the ($600) annual internal

revenue occupation tax as oleo manufacturer (Rec.,

p. 34) and had conformed to all the regulations appli-

cable (Ree., p. 34). The judicial notice of the Court

(Ree., p. 38) was directed to the Regulations of the

('oMMISSIONER OF INTERNAL REVENUE, Which are author-

ized by the law applicable especially to oleomargarine.

Those regulations prescribe (with much detail) the

form and terms of labels and marks on oleomargarine

packages put up by the manufacturer.

Several of those regulations refer specifically to the

brands of the manufacturer, and among them we note

these:

‘All letters and figures affixed must be legible,

and must be of such width and of such color as the

collector of internal revenue may designate.’’

‘““The above brand must be on the top only of

each package’’ (referring to forms of label

shown in another part of the same regulations, pp.

39-40, requiring the trade name of the product

“Oleomargarine”’ to appear, in letters not less than

°, of an inch in length).

“The use by oleomargarine manufacturers, or

dealers, of any private trade-mark, label, brand,

picture, illustration, or other advertising or de-

seriptive device upon any print, roll, or other mokd

or design of oleomargarine offered for sale, con

siimption, er use, or upon any wooden or paper

pockage or Wrapper of any print, roll, or other

mold or design of oleomargarine which conceals,

or tends to coneent, the fact that the product Is

oleomargarine, is hereby prohibited.’

“Under this regulation it will be seen that the

use on statutory or other packages of oleomarga

rine of any trademark, label, brand, pieture, illus

tration, or advertising or deseriptive deviee indi

eating the oleomargarine to be a product of the

dairy, op calentated te maduce the belief that it is

such dairy product, ts inacinissible.”*

LoS. Int. Rev. Rewuls. **Qleomargarine’* (Ne,

OG Revised uly, 1iM7 ) pp. ah

The foregoing regulation was referred to and part

of it quoted (Ree, po ds) at the trial.

It was in proof, without dispute, that the trade mars

“Greamo”’ was of grevt value; some experts in: the

husiness placing its value as high as $250,000 CRee.

=) and others at ‘tmany fold’? the amount spent to

wdvertise and publish it, whieh amount was shown to

he in 11S abont $10,000 per vear (Ree, p. 71), and

an average of $7,000 per year for ten vears ( Ree. p. 45).

The correspondence between plaintil and the Depart

ment of Agriculture in 1914 was read showing that de

fendants as U.S. officers thereof notified plaintif® thes

would not pass or certify as inspected the plaintifl's

product, intended for interstate commerce, vhiless

plaintit’ changed its trademark te “Creame Brane

Olecmaraarine.” CRee, pp. o0, G0, 61, 62) whieh would

have impaired fatally the utility of the tradesmark and

destroved its value as the undisputed testimony dem

onstrates (Ree. pp. ol, G2).

There was testimony (uncontradicted) that plaintit?

had gone to great expense to advertise this special

brand of oleomargarine; that from a small beginning

the plaintiff's business had grown 500 per cent. to an

annual volume of approximately $500,000, of which

two-thirds was of goods of that brand; and the sales

extend from Boston to California (Ree, p. 41).

The Defense

consisted of quotations from the Meat Inspection law,

und Regulations, the main features of which relied upon

are the following:

Part of the Aet March 4, 1907, ch, 2907:

No such meat or meat food products shall be

sold or offered for sale by any person, firm or cor-

poration in interstate or foreign commerce under

any talse or deceptive name; but established trade

hame or names whieh are usual to such products

ond whieh are not false and deceptive and which

shall he approved by the Secretary of Agriculture

are permitted’ (34 Stat. L. 1262.)

Fed. Stats. Annet. (Supp. 1909) p. 48,

Of the Regulations of the Department of Agriculture

(Burean of Animal Industry), May 1, 1908;

“Section 10 No meat or meat food products

shall be sold or offered for sale by any person,

firm or corporation under any false or deceptive

maine: but the established trade name or names

whieh are usual to such products, which are not

false and deceptive and which shall be approved

hy the Secretary of Agriculture are permitted, ”’

Regulations (108) p. 28, see, 10

Defendant put in evidence seme further regulations,

.

pay ee

but as they are not relied upon in the learned Brief

for the Government, we need not quote them.

Defendants also introduced some oral testimony:

One of the defendants, Dr. Brougham, admitted the

purpose of his Department to be to refuse to certify as

inspected for interstate shipments the oleomargarine

products of plaintiff’s factory if they bore the brand

“Creamo’’ Oleomargarine, pursuant to his orders from

his Department Chief on that subject (Ree., pp. 80-83).

There was no testimony that any one had ever been

deceived or misled by the trade-mark ‘‘Creamo’’ on

packages of Oleomargarine, or had ever supposed it to

be cream or made from or of cream.

There was so little conflict of evidence that the suit

is practically one of undisputed facts.

Perpetual Injunction

After the trial, argument and submission the learned

trial Judge made the injunction prayed perpetual,

as shown by the record, enjoining defendants

“from attempting to deprive plaintiff, its suc-

cessors and assigns, of the use of said brand, trade-

mark and label described in said bill of complaint,

used upon packages of Oleomargarine manufac-

tured, packed, sold or offered for sale by said

plaintiff, its agents, successors, assigns or custom-

ers, in the prosecution or course of the business

now conducted by plaintiff as manufacturer and

vendor of Oleomargarine’’; ete. (Ree., p. 20).

(At the time of the decree the learned Judge filed a

statement of his views.)

—

Memorandum Opinion of the District Court

(April 27, 1814, Ree., p. 19)

Dyer, J.

“The complainant now is, and for many years

last past has been, engaged in the manufacture and

sale of oleomargarine in the City of St. Louis, and

State of Missouri. The business of the complain-

ant has steadily grown until its proportions are

now very great. This, in spite of the fact that the

annual license tax amounts to six hundred dollars,

and in addition thereto a tax of 14 of one per cent

on each and every pound of white or uncolored

oleomargarine manufactured by it, and ten cents

a pound on each and every pound of colored oleo-

nargarine manufactured by it, is imposed by law.

The license tax of $600.00 per annum has to be paid

at the beginning of each year, and the tax imposed

upon each and every pound of white and colored

oleomargarine has to be paid by the manufacturer

before it is removed from the factory. Failure to

comply with these requirements is followed by

heavy penalties imposed upon the manufacturer,

No package is allowed to leave the place of manu-

facture without being plainly marked ‘Oleomarga-

rine’. Failure to comply with the law in this re-

gard imposes heavy penalties upon the manufae-

turer also. As far as the evidence shows in this

‘ause the complainant has at all times complied

with the law.

‘Prior to 1904 the complainant began the use

of a brand or ‘trade-mark’ upon portions of its

product, in the form following:

“The Blanton Co,

St. Louis.

Creamo

Oleomargarine,

“This ‘trademark * or brand (from the proof in

the case) seems to have been approved by the Com

missioner of Internal Revenue on the 19th of Jan

ary, 104,

After the meat inspection act was passed, June

BO, 1906, the complainant submitted the same

brand to the Burean of Animal Industry, and if

was officially appreved by it, as shown in a De

partment letter dated May 24, 1907, signed by Rice

P. Steddon. ‘To this letter is attached a sample

of the label, whieh in all respects is the same as

the one appearing in the bill of complaint in this

CUSe,

“The evidence shows that for more than five

vears the complainant used this label upon its prod

vets, not only without objection upon the part af

the proper officers of the Government, but witl)

their approval.

“An attempt, it appears, is now made by those

in authority to reverse the decisions of their prede

eossors and to require a change to be made in this

particular brand or ‘trade mark.”

“The complainant has expended large sums of

money in advertising and popularizing its prod

net, covered Th such brand, It would be inequita

ble upon the part of the Government and its off

cers to stand by, approve and acquiesce in this

brand for five or six years, and then, at great loss

1]

to the complainant, refuse further to let its prod-

uet be sold under this same brand.

The complainant is entitled to the relief prayed

for in its bill. An order to that effect will be en-

tered’’ (Ree, pp. 21-22).

The defendants appealed from the decree and as-

sign certain points as supposed errors (Ree., p. 25),

which will be discussed, so far as may be necessary, in

our Brief.

Joinder in Error

The appellee by its solicitors and counsel say there

is no error to the prejudice of appellants in the record

and proceedings of said District Court in said cause as

by appellants assigned, or otherwise, and accordingly

appellee prays that the decree herein may be in all

things affirmed.

BRIEF OF THE ARGUMENT FOR APPELLEE

Plaintiff? has had the use of the trade-mark,

“Creamo”’, on oleomargarine of its own manufacture

for many vears; has expended large sums to increase

its original value, after double approval by the Internal

Revenue Department of the Treasury and by the De-

partment of Agriculture, during former administra-

tions from 1904 (Ree., p. 29) to 1912 (Ree., pp. 12, 31,

46). After having built up oa good and erowine

trade, made large investment of capital, time and ef-

fort, a new set of federal officers, in 1914. under a dif.

ferent Sceretary of ANericuiture, suddenly attempt

to sweep away the earnings and good will ae-

quired in this trade-mark and demand its surrender.

under penalty of withholding the certificate of local

inspection of the Bureau, without which certificate the

transportation companies would not accept plaintiff's

product for shipments in interstate commerce, — As

plaintiff's trade in this article, under this brand, has

become of considerable value and has expanded

throughout the United States, there was no alternative

te parry such an attack on plaintiff's property rights

in its trademark, except by resort to the court in the

form deseribed in the bill for injunction and relief, on

whieh the learned Judge below aecorded the reliet

needful to protect the rights of the plaintiff.

The points to be met, in the review sought in this

Court by the Government, may be briefly treated alone

with our counter propositions,

Lefendants’ claim that the Secretary of Ag-

riculture is vested with exclusive authority to

determine whether the trade-mark, °C cain"

is false or deceptive.

We deny it, and also answer that the claim

does not meet our case.

Several phases of that claim of defendants must be

considered:

a. What is meant by ‘trade name?’ in the Meat In-

spection law?) Does it refer to trade marks or to the

name by which the product is known to the trade, as

meat, grease, lard, oleomargarine, ete?

The regulations (sec, 10) quoted by the learned coun-

sel for the Government should be read in connection

with other sections which refer to trade labels and

show$ the difference between a trade label and a trade

name. We quote both, presently:

‘Section 10,

No meat or meat food products

shall be

sold or offered for sale by any person, firm

or corporation under any false or deceptive name;

but the established trade name or names which

are usual to such products and which shall be ap-

proved by the Secretary o

f Agriculture, are per-

mitted,’’

The “product”? in our case is Oleomargarine. That

is the true and only name of the product. Our label or

trade-mark is ‘*Creamo’’, intended to identify to the

trade the product, Oleomargarine, as

plaintiff. That label is strictly in conformity

to the regulations, two of which (in the same Article

No. 18, and also in the defendants’ t

p. ¢6) define a trade label thus:

Regulation 18. Trane Lanes

Record, p. 79):

made by

estimony, Record,

(Regulations, p. 26;

SECTION }. Upon each * * * “receptacle or coy-

ering containing any meat or meat food product,

Which meat or meat food product does not hear the

marks ‘Inspected and Passed’, there shall be se-

curely affixed, under the supervision of a Depart-

ment employe, a trade label before such meat or

meat food product leaves an official establishment.

This trade label shall contain, in plain letters and

figures of uniform size, the words ‘U, 8. luspected

and Passed’, the number of the official establish-

ment at which the meat or meat food product is

last processed, and the true name of the meat or

meat food product contained in such package. The

words ‘under the act of Congress of June 30,

1906") may be placed upon the label after the

words ‘U.S. Inspected and Passed’, An inspector

shall not allow trade labels to be affixed until he is

satisfied that the contents of the package are

~14

sound, healthful, wholesome, and fit for human

food, in accordance with the statements on the

lh dled

“Section 5. The essential features of a trade

label are as follows, and shall appear upon each

label:

The trne name of the product.

The inspection legend

The establishment number.”

(The display type is ours)

So that. under the evidence in this record, plaintill

fully conformed to the Meat Inspection law, whether

or not it be held applicable to the branding or labeling

of Oleomargarine packages.

The particulars of the evidence disclose how earn

estly plaintiff attempted to avoid any controversy, ap

preeiating how serious any difference is) between a

manufacturer of OQleomargarine and any Bureau or De-

partment of the Government, Yet when this suit) was

brought, there seemed no other alternative.

The trade name of the product of plaintiff is on every

package: ‘Oleomargarine”’, and the label deseribing

it conforms to sections 1 and 5. The trade mark

“Creamo” is not part of the name of the ‘*product’’.

but isa proprietary term to identify it and distinguish

it from the same general sort of trade ** product’? pro-

duced or made Hy others.

This topic was recently well treated in a case in this

Court. in which the same law was invelved, and the

Court held that ‘tthe Secretary of Agriculture has

nothing to do with the name of an article so long as it

is not false or deceptive’’.

Packing Co. v. Houston, 215 Fed. 960,

The same decision approves a statement of the law in

a well-known treatise as follows:

im By

““"Prade-names have been frequently confused

with trade-marks, and, broadly considered, they

do include names which may constitute technical

trade-marks. More aceurately, however, trade-

names dre names which are used in trade to desig-

nate a particular business of certain individuals

considered somewhat as an entity, or the place at

Which a business is located, or of a class of goods,

but which are not technical trade-marks either

hecause not applied or affixed to goods sent into

the market, or because not capable of exclusive

appropriation by any one as trade-marks. Such

tradenames may, or may not, be exelusive, Ex-

clusive tradenames are protected very much upon

the same principles as trade-marks, and the same

rules that govern trade-marks are applied in de-

termining what may be an exelusive trade-name.

Non-exclusive trade-names are names that are pub-

lict juris in their primary sense, but which in a

secondary sense have come to be understood as in-

dicating the goods or business of a particular

trader, Trade-names are acquired by adoption

and user, and belong to the one who first used them

and gave them a value’."*

os (ve, 764

Cady v. Schultz, 19 RL 1.193 (32 Ath. 915)

Mairbank Co. v. Soap Co. 102 Fed, 327

Laundry v. Bank, 120 lowa 1 (94 N. W, 262)

Those comments on the law well expound the me:u-

ing of ‘tradenames’? (as used in the Meat Inspection

law), as distinguished from trade marks. The statute

and section 10 of the regulations of the Department of

Agriculture forbid) false or deceptive trade names.

Sections Land clarify the meaning of the other pro-

Visions and should be read as part of them. ‘The

true name of the product’, preseribed by section 5,

mitt

therefore, satisfies the meaning and intent of the law.

Here the ‘product’? is oleomargarine. The word

“Creamo”” (in connection with it) designates the

maker whose trade-mark it is, according to the prin-

ciples governing the law of trade-marks, briefly ex-

pressed thus:

“A ‘trade-mark’ may be defined as a symbol,

consisting in general of a picture, a label or a word

or words, applied or attached to the goods of a

trader for the purpose of distinguishing them

from the similar goods of other traders, and of

identifving them as his goods, or as those of his

successors, in the business in which they are pro-

duced or put forward for sale.”’

Kney Brit. (11th ed.) ** Trade-marks”’

‘*Trade-mark. A distinctive mark, motto, de-

vice, or emblem, which a manufacturer stamps,

prints, or otherwise affixes to ihe goods he pro-

duces, so that they may be identified in the mar

ket, and their origin be vouched for.’

Black’s Law Dict. ‘* Trade-mark”™*

The term **trade name’? is occasionally used in other

senses, explained recently (1911) by an eminent writer.

It may be the trading name of a person, firm or of any

business association by which good-will has been built

up, ‘although when used as a name, and not as a mark

on vendible goods, it is not used as a trade-mark’? (p.

275). Then a trade name may be applied to goods of

one proprietor or maker when by long use that name

has ‘‘come to mean’’ his goods, ‘‘though it is not, and

never was, impressed on the goods themselves’’ so as

‘to be a trade-mark, properly so ealled, or within the

recent statute’? (p. 276). ‘It cannot be said to he gen-

V7

erally admitted that a right of property can be ae-

quired in a trade name’? (p. 277); but its proper ac-

quisition and use may lay a foundation to apply the

principles of the law of unfair competition in case of

piracy thereof by a competitor, heyond the incidence

of the law of trade-marks. The “Camel hair belting’’

case is an illustration of that rule.

Sebastian, Trade-marks (5th ed.) 275-8

Reddaway v. Banham (1896), A. C. 199

All these careful anatomists of meaning, in this field

of jurisprudence, agree that, while a trade name may

have a certain status and value of its own in the com-

mercial world, it does not t ereby become a trade-

mark. So that when the Meat Inspection law refers

to “labels’? and to ‘*trade names’? to describe the

product’, which must be what it purports to be, a

venulne trade-mark, original, arbitrary, fanciful and

attractive, is not prohibited, but rather encouraged hy

the Meat Inspection Act, which should be accepted and

interpreted so as to encourage and promote the use

of trade-marks and other legitimate modes of extend-

ing commerce and stimulating individual efforts to-

ward advancing honest business.

) But if this trade-mark is within the range of

section 10 as quoted, what then?

Was that mark approved by the Secretary ?

It was twice approved, first, in 1907 and again in

eZ.

Let us then ask: where is the law to be found to

authorize a Secretary to revoke an approval by a for-

mer Secretary?) We know of no such law. On the con-

trary, the power to approve does not inelude power in

a later incumbent of the same office to undo that ap

1s

proval, after the party interested has invested large

sums on the faith and in reliance upon that action of

the approving Department.

Lane v. Watts, 234 U.S. 525

Jamestown v. Ry., 177 USS. 180

Noble v. Logging Co., 147 U.S. 165

U.S. v. Ala. R. R142 UL S. 621

Kmblen v. Land Co., 94 Fed. 710

We shall recur to this point later, in another connec:

tion.

¢ There is not) a particle of evidence — that

“Creamo’ as a trade-mark is ‘tfalse or deceptive’’.

The answer makes such a charge (p. 27), but no proot

was introduced to support it, and it) is) obviously

groundless. If any proof was to be had, we may be

sure it would have been forthcoming.

d Even if the power was lodged in the Secretary

to revoke an approval of such a trade-mark, there is

nothing in the law or in any Act of Congress conferring

conclusive jurisdiction in that matter, Clear terms

would be necessary to remove the exercise of such

power from the review of the courts. The issue would

vet remain as to whether the trade-mark was, in fact,

false or deceptive. Every well-organized and efficient

court would normally assume that the owner of such

property was innocent of such falsity or deception,

until at least some testimony was produced tending to

prove the contrary. Here there is none.

The claim by defendants that the trade.

mark ‘‘Creamo’”’ is false or deceptive is with-

out merit even if it be regarded as a trade-

name.

The only defense advanced is the claim that this

trade-mark as applied to Oleomargarine is “false and

’°

deceptive, Yet the Government has proposed (in

the correspondence read in evidence) to approve the

use of the word ‘‘Creamo”’ if the word ‘‘ Brand”

was added thereto on the label; just as if anybody

could imagine the word ‘Creamo” to he anything

else but oa ‘brand’? of something; in this case, of

Oleomargarine! The suggestion to add_ the word

‘brand’? is like a preposal to paint the word ‘cow?

on the animal itself in some great picture where that

animal figures! [tis like ‘painting the lily’? or gild-

ing refined gold,

The plaintiff's trade-mark **Creamo’’, as applied to

Oleomargarine, was approved in 1904 by the Com-

missioner of Internal Revenue by the letter in. evi-

dence, already cited,

That was before Meat Inspection by the Bureau of

Animal Industry began, and before the enactinent of

the Act therefor, June 30, 1906. After the latter Act

went into effect, plaintiff was required by the officers

of the new Bureau to submit its brand to that Bureau

for approval; and the form now in use on the chief

label (identical with the one copied in the bill of eom-

plaint herein) was officially approved by that Depart-

ment in the letter of May 24, 1907 (which was read in

evidence), signed by the Chief of the Inspection Divi

sion (Ree, po 380). To that letter is attached a sample

0

of the label bearing the trade-mark ever since and now

in use thereon,-same as appears in’ the bill of com

plaint in this case. The approval of the Department

required a slight amendment in the language appear

ing on one of the lesser panels of the label, and to

that direction the plaintiff conformed at once, and has

ever since obeyed. That approval was in May, 1907,

during the administration of President Roosevelt,

while Hon, James Wilson was Secretary of Agricul

ture,

The plaintiY, having thus obtained the approval of

its trademark and brand by twe Departments of the

United States Government, viz: the Internal Revenne

Department and the Burean of Animal Industry,

thought itself safe in offering its approved trade-mark

in another Department, where, Upon an application,

filed in Jan. 1908, registration thereof by the Patent

Ofice was accorded in .June, 108, under the federal

law.

From the time of beginning the use of this trade

brand ‘'Creamo’ until Ang. P12, no objection

thereto was interposed by any of the Departments.

Meanwhile, on the faith of these approvals, and be

lieving they were correct and just, plaintit? expended

a great deal of money in pushing and extending its

trade in Oleomargarine under that brand. That brand

was advertised far and wide; and after the Internal

Revenue Department (Feb, 24, T9808) upen amending

the regulation of 1907 (T. D. 1825) permitted manu

facturers to put up this product in small packages

fof 1. 2. 3 and 5 Tbs.) in cartons (such as are shown

by the evidence here) se that the consumer can now

receive and recognize the original package with the

maker's own mark or brand thereon, the use of

a ee

the latter beeame much more of a trade asset, and has

now acquired so substantial an importance and peeun-

lary value, that plaintiff felt obliged to proteet. it

against the undue activity of the present Bureau of

Animal Industry, in trying to reverse the ruling of

former administrations on the same identical facts,

Because, since 1904, the mark “Creamo”’ as applied

to this product has been the same sort and kind of a

brand, all the time.

The Government contention was that the label *

should be changed to read “Creamo Brand Oleo-

margarine”? There js undisputed evidence in the

record that such a change would greatly damage the

value of the trade-mark. It would really be compelling

plaintiff to adopt a new mark, and build up again (if

it could be done) the laber of vears, The word

“Creamo™’ is obviously a brand for Oleomargarine,

as “*Cremo’’ is also a well-known brand for cigars,

and “Cream of Wheat’ is a brand for breakfast food

and “Cream Baking Powder’ is a brand for baking

powder, These brands have never been held to arouse,

in either instance, a deceptive suggestion or suspicion

to or on the part of the trading public that either j

composed, in whole or in part, of cream.

Ss

They are

only trade brands as is this of the plaintiff,

No evidence is before the Court te indicate

that any

person, Whether custome

r, dealer or spectator, has ever

hought the article on seen or used it on the supposition

that it is a cream produet,

In a recent decision of the Supreme Court in U.S.

v. Lexington Mill Co., known as the Bleached Flour

Case (Feb, 24, 1914) No. 588, Oct. T. 1913, the United

States Supreme Court has sustained this theory in re-

gard to cases brought under the Pure Food Law. In

that flour case it is held that while it might be POssi-

ble that consumers of bleached flour could be poisoned,

vet it Was necessary that the Government should prove

that the flour so bleached was actually poisonous and

injurious to the public health, in order to warrant dis

approval, and that ruling was cited later in the Coca

Cola case (241 UL S. 265),

That the trade word ‘*Creamo’’, as used by plaint

iff on Oleomargarine, does not imply that it is made

“from cream is more plain from the testimony, given in

this ease, that the Government officers (in one of their

demands fora change in plaintiff's existing label) pro

posed that plaintif?® might insert the words: **Con

tains No Cream’? (following ‘'Creamo Brand Oleo

margarine"); but that would not always be true, for

sometimes some cream is used in making this produet,

The brand ‘*Creamo™, while it is arbitrary, orig

inal, fanciful and net generic, attempts to give a new,

clean, unique and pure trade brand to the product of

plaintif?’s manufacture. | Many examples of valid

tradeamarks are familiar in the decisions. The best of

such devices are those whieh carry some suggestion of

a pretty, or happy or romantic idea or thing. There is

nothing improper or illegal in that characteristie of

such trade labels whose very purpose is to be attract

ive within the range of truth and fair dealing.

We mention a few:

“Cream baking powder’ (37 App. D.C. 137)

“Cream baking powder’? (8 Biss. 598)

“Cream Rolled Oats’’ (171 Fed. 989)

“Swan down’’, complexion powder (85 Fed. 774)

Vienna Bread’? Gin N.Y.) (62 Tlow, Pr. 92)

Purity’? oleo (83 Off. Gaz, 295)

The evidence shows that plaintiff, in 1908, obtained

23

of the Commissioner of Internal Revenue a modificea-

tion of the oleomargarine regulations, so as to permit

that product to reach the consumer in small packages

hearing this brand; and thereby helping to proteet the

manufacturer and the Government against fraud, and

to secure the direct appeal of this trade-mark in a busi-

ness way to the customer, as to every retail package,

That regulation is now as follows:

Intern. Rev.

T.D. 1823 (Oleomargarine )

Circular of Feb. 24, 1908.

The change is shown therein in these words:

Manufacturers are not permitted to put up

loomargarine in wooden, tin, or stone packages

as subdivisions for domestic use. The use of par-

ifined wrappers or cartons for prints or bricks to

retain the flavor and form of the contents is per-

missible, provided such packages taken separately

are not safe or suitable for transportation, and are

marked, stamped, or branded as required by the

regulations relating to wrapper covering any

brick, print, or roll of oleomargarine,”’

The above regulation is a substitute for see, 5 (page

39), USS. Int. Rev. Regs, No. 9 (July, 1907) for OLEO-

MARGARINE.

Plaintiff's establishment is supervised and inspected

hy the Internal Revenne Department, the law (see. 6)

ond regulations of which specially ana especially apply

to all branding, marking and stamping of Oleo (Act.

Aug. 2, 1886, amended May 9, 1902).

The regulations of that Department are minute and

specific and have been already sufficiently described,

er OES

The claim of defendants that ‘‘Creamo”’ is false or

deceptive as a trade-mark ill comports with the Gov

ernment’s proposal to allow its use with the word

‘brand’? added. That was a concession fatal to the

claim now advanced, although the claim is inherently

unsound, and borders on the frivolous, although we in-

tend no disrespect to nus of the officers of the Govern-

ment by that observation. At best, their claim is un

tenable, we respectfully submit.

The Meat Inspection Act does not apply to regulate

marks and brands on Oleomargarine packages.

The status of Oleomargarine and of Oleomargarine

brands is specifically fixed and detined by the Special

law and regulations in regard to them, in sees. 6 and

“0 of the Act of Aug. 2, TS86 (24 Stat. 209).

The Court will observe that the Meat lnspeetion Act

provides that no ‘tmeat or meat food produet’* shall

be sold or offered by any person or corporation for

sale in interstate or foreign commerce under any false

or deceptive name, [tis a matter of common know!

edge as well as of science that while oleomargarine is

often a meat product, it may also be made from mate

rials containing no meat whatever (Ree. po 88). In

view of the fact that Congress has seen fit to apply to

a special produet a defined name: ‘*Oleomargarine”’,

and that this name appears on that product in plaint

iff’s label; the latter, in that respect, certainty com

plies with the Meat Inspection Law.

A reading of Section 6 of the Oleomargarine Act of

Ane. 2, TS86, will satisiy experienced Sducdwes that

it fully covers the matter of marking and branding

Oleomargarine. Plaintiff, following that section of the

law, has complied fully with all its requirements and

with all the regulations under that law. It submitted

the word ‘‘Creamo”’ as a suitable brand to the Inter-

nal Revenue Department, in 1904, and it was fully ap-

proved in the form in which it has been used ever

Since,

Abundant authority exists for the trite rule that spe-

cial legislation takes precedence over any general

statutes or language, even on the same subject. In

View of the facet that the special Oleomargarine Law

sets out specifically how the product shall be marked

and branded, it should follow that the general law (if

it applies at all) would not apply to those matters spe-

cifieally covered by the Special Act applying strictly

to Oleomargarine.

But a reading of the Meat Inspection Law will dis-

close that it is wholly and purely a law covering the

Inspection and sanitation of meat packing establish-

ments. Tf an Oleomargarine factory is a meat packing

establishment, this law at most could only go to the

sanitation and inspection of raw and finished products,

and to such examination as would see that the label

hears the true name of the product, which has long be-

tore been covered by the legislation defining that prod-

net as Oleomargarine.

It is undisputed in the evidence that the plaintiff

protested against the attempt of the Bureau to revise

the “Creamo™ label (Ree., p. O1) and also against the

inspection of its produet under the Meat Inspection

Law (Ree. p. 50) when it was first inaugurated; and

the evidence also shows without contradiction that

Oleomargarine can be manufactured from a selection

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of oils whieh does not include any meat fats or animal

fats (Ree., p. 8&8).

The Act of Congress (.Angust 2, 1886) known as the

Oleomargarine Law was passed, and as amended May

§. 1902. was intended to levy a heavy revenue tax and

to protect the publie from dealers selling oleomargarine

for butter. It was thought necessary tO Use

the Internal Revenue Department as a vehicle

to aecomplish — that purpose, it being conceded

that while Congress could not usurp the police

powers oof any State, it might impose and col

lect a revenue tax in the mode which was adopted.

Lneidental to the collection of that revenue, Congress

saw fit to say on whit manner of packages of the porod

vet it would collect that tax, and enacted that the prod

vet on which the revenue was to be collected should be

marked and branded in a certain way.) Furthermore,

the law specified that the Commissioner of Internal!

Revenne, with the approval of the Secretary of the

Treasury, should make all needful regulations for car

rving into effect that law. Those regulations were

made in great detail and some of them have been al

ready quoted,

We respectfully submit that they are exclusive.

The Seeretary of Agriculture has ruled that the Pure

Food Law does not apply to butter or to the coloring

of butter, as that is covered by specific legislation (the

Oleomargarine Act, which defines both Oleomargarine

and butter). We claim that it should, therefore, fol

low that, if the Pure Food Law does not apply to butter

(because, as is held, incidentally the latter is covered

in the Oleomargarine Law), then the Meat Inspection

Law is within the same principle and should be held

at

inapplicable to the products within the terms of the

Oleomargarine Law.

The rules of interpretation applicable to this branch

of the case are well established.

“Where Congress has designated an article by

a specific name and imposed a duty upon it, gen-

eral terms in the same or in ancther act, though

sufficiently broad to comprehend such article, are

not applicable to it; in other words, the article

Will be classified hy its specific designation rather

than under a general deseription.’’

“4A. & FE. Envy. Law (2nd ed.), 890

Chew Hing Lung v. Wise, 176 U.S. 156

Bogle v. Magone, 152 U.S. 622

Ameriean Net, Ete., Co. v. Worthington, 14]

U.S. 468

Arthur v. Rheims, 96 U.S. 143

Arthur v. Davies, 96 U.S. 135

Arthur v. Stephani, 96 U.S. 125

Arthur v. Zimmerman, 96 U.S. 124

Arthur v. Lahey, 96 UL S, 112

Movins v. Arthur, 95 U.S. 144

Dieckerhoff v. Miller (C. €. A.), 98 Fed. Rep.

651

Zante Currants, 73 Fed, Rep. 183

U.S. v. Davis (C. C.A.), 54 Fed. Rep. 147

Smythe v. Fiske, 23 Wall. (U.S.) 374

Reiche v. Smythe, 13 Wall, (U.S.) 162

Homer v. Collector, 1 Wall. (U.S.) 486

The same rule applies where an article is specifically

designated as exempt from duty.

Chew Hing Lung v. Wise, 176 U.S. 156

And that rule is asserted in a vast array of decisions

of which a few only need be eited.

Haves v. ULS., 150 Fed. 63

U.S. v. Borden, 133 Fed. 840

___. 98

“Tt is an established rule of construction that,

where there are both general description and spe-

cifie designations of an article in the same act, it is

the intention of Congress that the article be classi

lied by its speeifie designation, rather than under

the general deseription.”’

Homer ve. The Colleetdér, 1 Wall. 486 (490)

Reiche vo Smythe, 13 Wall. 162 (165)

Smythe ve Fiske, 28 Wall. 874 (380)

Movius v. Arthur, 95 U.S. 144 (146)

Arthur v. Lahey, 96 U.S. 112 (113)

Arthur v. Stephani, 96 U.S. 125 (126)

American Net Co. v. Worthington, 141 U.S.

468 (474)

On these decisions we respectfully submit that there

is no jurisdiction in the Department of Agriculture to

control or regulate the marks or brands on packages of

Oleomargarine in se far as the details of branding and

marking them are covered by the specific regulations

and directions in the Internal Revenue law, as to Oleo

margarine.

Meat inspection by the Department of Agriculture

(B.A. 1.) is authorized for ‘tmeat and meat food prod

ucts”? by the law of June 30, 1906, Oleomargarine is

not mentioned in that Act, and the whole tenor thereof

shows it is not intended to supplant the revenue laws

as to trade labels on Oleomargarine (.Act of Aug. 2,

IS86) which (sec. 14) also provide for inspection of in

gredients of Oleo and a hearing if same be supposed to

contain deleterious ingredients. Oleo is defined by see.

> of the Net of Aug. 2, D886. it ean be made (as so de

fined) without any material which might properly be

classified as a meat food product (Ree., p. 88).

It is a general rule (often applied by the U.S. Su

ie I ces

preme Court) that specific provisions of law as to one

subject are paramount and controlling as to that sub-

ject, despite a general law (either prior or later) cov-

ering a larger class, including also the one subject.

li has often been so held as to revenue laws, as well as

other laws.

U.S. ve Nix, 189 UL S. 205

Hartranft v. Langfield, 125 U.S. 135

Seeberger ve Calin, i837 U.S. 97

Am. N. & T. Co. v. Worthington, 141 U.S. 468

That is one of the large features of this case. We

hope it may have close attention now that plaintiff,

much against his will, has been obliged to invoke the

aid of the Courts to proteet its trade-mark, and the la-

bel thereof,

To state our contention briefly, it is this: that the

Meat Inspection amendment (June 30, 1906) is not in-

tended and cannot be construed properly to apply to the

Oleomargarine industry so far as to regulate the brands

used on Meomargarine, because the Revenue laws gov-

erning the manufaeture and sale of Oleomargarine de-

clare explicitly as follows:

‘Section 6, Act of August 2, 1886:

“That all Oleomargarine shall he packed by the

manufacturer thereof in firkins, tubs or other

wooden packages not before used for that purpose,

each containing not less than ten pounds, and

marked, stamped and branded as the Commis-

sioner of Internal Revenue, with the approval of

the Seeretary of the Treasury, shall preseribe”’,

ete.

(Regulations, 1907, Oleo. p. 7)

Under the foregoing statute, a series of minute regu-

sl)

lations have been made by the Commissioner of Inter-

nal Revenue, a few of which we mention (Regulations

No. 9% duly, 1907), U.S. Intern. Rev. The brand or

stencil on every package of Oleomargarine (before re

moval from the factory) is prescribed (p. 39) and the

letters and figures of the brand must be of a certain

dimension. ‘The use of private marks (or trade-marks)

is carefully provided for as follows (p. 40);

“Tf manufacturers of Oleomargarine desire to

place upon the outside of their original wooden

package, contemplated in Section 6 of the Net of

Angust 2, ISS6, their names, or some word or mark

descriptive of the quality of the product, they may

do se, provided they also brand or stencil on the

package the word Oleomargarine”? beneath such

name, word, or mark, so as to be read as a word in

association with such name, word, or mark; and,

if desired, figures and words may be added, indi-

cating the form or manner in which the contents

are packed, as shown in the following illustratrons:

Joun Dor, Ricnarp Ror,

Manufacturer of Manufacturer of Perfection

(OLEROMARGARINE, (OLEOMARGARINE,

DOL Ib Plain Bricks. Solid.

Joun Dor, Ricenarp Ror,

Manufacturer of Standard Manufacturer of Creseent

(OLEOMARGARINE, (OLEOMARGARINE,

20-1-b. Faney Rolls, Short o2-1-Ib. Rolls, Long.

+ Provided, the word ‘Oleomargarine’, as used in

such labels, marks, brands, ete., is branded or

stenciled in plain roman letters, not less in’ size

than the letters used in the manufacturer’s name,

with the word deseribing the brand in letters not

vreater than one-half that. size.

‘*And provided, also, the figures and words

describing the form in which contents are packed

be not greater than one-half the size of the let-

ters prescribed for the word ‘Oleomargarine’.’’

The next page of the same regulations is devoted to

details of regulation on this subject. Pages 38 to 40

of the above regulations should be carefully read. They

show to what extent of detail the internal revenue

regulations deal with the brands on QOleo packages,

The Oleo law is very special on this subject.

Of course, we know that Congress might, if it saw

fit, provide that trade brands on Oleomargarine pack-

ages might also be revised and — inspected hy

another Department (so far as interstate shipments

are concerned); but our question now is: has (‘on-

“ress shown, by the laws, such an intent. We think

not. Our claim is that the general language in the

Meat Inspection (B.A. 1.) law of June 30, 1906 (as

amended to this date) does not have that effect. It is

expressed in terms to apply to ‘meat and meat food

products’ in general; but all through the long lines

Which follow that general description of — the

subject of the aet, we see careful directions as

to the slaughtering, packing, meat canning and

rendering of ‘‘eattle, sheep, swine, and goats’’.

We see directions for post-mortems of those animals.

and provisions as to their carcasses, Tf you will read

the Act throughout (and it appears in a convenient

form for that purpose in the B.A. T. ‘*Regulations for

Meat Inspection’’. Order 150, effective April 1, 1908,

pp. 49-48) von will see no word or phrase whieh eould

possibly suggest a purpose to submit. the brands on

Qleomargarine to the inspeetion provided by that Inw

m9

or to remove those brands and trade-marks from the

supervision and inspection provided, in much detail,

by the Internal Revenue regulations concerning the

product in question, known by the trade name of

>

li omadrdaarrrye,

Now, in this state of the statutory law, well-known

rules should be applied. The special provisions of the

Internal Revenne law exclude application of the more

veneral provisions of the Meat Inspection (B.A. 1.)

statutes, even if the latter would by their terms other

wise apply to Oleomargarine,

To quote Chief Justice Mansianr:

“That a law is the best expositor of itself, that

every part of an act is to be taken into view for

the purpose of discovering the mind of the legis

lature, and that the details of one part may con

tain regulations restricting the extent of general

expressions used in another part of the same act,

are among those plain rules laid down by common

sense for the exposition of statutes which have

been uniformly acknowledged,”"’

Pennington v. Coxe, 2 Craneh, 52

All statutes in pari materia should be considered,

and ‘*the general language found in one place may be

restricted in its effect to the particular expressions em

ployed in another’, if such appears to have been the

intent of the enactment.

Homer vy. Collector, 1 Wall 3020 (* Almonds”

cause)

Atkins v. Disinte. Co., IS Wall. 301-2

U.S. v. Nix, T800UL S, 205

Judge Proies on this subjeet las said:

“It is among the recognized canons for the con

“on

oumme «ed

struction of statutes that, when the legislature re-

sort in an enactment to much more special pro-

Visions respecting a given matter or offense, it

must be taken and understood as an exception to

the more general provision or general statute, es-

pecially so in the interpretation of criminal laws.

This rests upon the doctrine that, ‘where the har-

mony of the law requires, one statute will be con-

strued as cutting short, that is, curtailing the ef-

fect of another’. So that ‘a thing given in par-

ticular shall not be taken away by general

words,’ ’’

State v. Green, 24 Mo, App. 231

This principle has been shown by legislation in Eng

lanl.

In the English statutes concerning Pure Food and

Drugs (as lately amended) there is express mention

made of Margarine, in order to bring the latter within

the terms of the former, because Margarine was treated

(as in the American law) specially and separately in

another statute on that particular subject. These hng-

lish statutes demonstrate our point by acting clearly

in accord therewith,

See 62 and 63 Viet. «51 (1899)

(Margarine) 50 and 51 Viet. e. 20 (1887)

In America the Regulations of the Internal Revenue

Commissioner, as to marking and branding OQleo pack-

ages, have the force of law, and plaintiff is and has

heen following same to the letter, and the statute is

clear as to the mode of branding Oleo packages,

Act Aug. 2, 1886, sec. 6, UL S. Int. Rev. Regs,

No. 9 Oleo, pp. 7; 38-42

We claim that said law and regulations should be

4

held exclusive, in the absence of any showing of a dif

ferent legislative purpose, Over fifty decisions can be

found as te special provisions being paramount te gen

eral terms in statutes,

6 AL & EF. Eney. L. (2 ed.) p. 618

We are well aware that the paramount precept of all

construction of law is te reach the real intent of the

terms of the law as disclosed by them. But the sub

ordinate rules are helpful to reach that intent. Here

there is nothing in the Meat Inspection law to indicate

that it was intended to supplant or to repeal the terns

of the special law already in foree to govern the brand

ing and marking of packages of oleomargarime,

Ay

The ‘‘Creamo'’ trade-mark is a valid one,

in every and all aspects.

It was not necessary to resert to definitions te vindi

cate the validity as a trade mark of such a word as is

here in question, It is original, faneiful, not generic,

net deseriptive of the trade produet apart from its

maker, It was selected to identify the ‘make of its

maker, and its value now is unquestionable, Tt carries

a good will whieh is a mest valuable species of prop

erty, Comparison with decisions is searcely nemdful te

support its validity,

If the Court was called on, as an original preposi

tion, te decide whether Creamo’’, as applied to Oleo

margarine packages for sale could be a valid: trade

mark, and the only objection was the assertion that

“Creamo’’ was ‘tfalse or deceptive’ in itself (for there

is ne extraneeus evidenee to suppert any such claim)

a0

would any well-informed Court hesitate to hold it-a

lawful trademark as against such an objection?

No court would regard such an assertion seriously

Without testimony to support it,

U.S. v. Coca Cola Co, 241 U.S. 265

The learned Brief for the Government (p. 11) asserts

that ‘the statute prohibits interstate transportation of

sume”’ (referring to plaintiff's oleomargarine prod

ets) ‘because of its deceptive name’’, But that is the

heurest approach to any suggestion or argument to

show in what respect it is supposed that the term

“Creamo”) as applied to Oleomargarine (and alwavs

in connection with the name of that product) could pos-

sibly mislead or deceive any one. The word is an arbi

trary term, original with the manufacturer, coined for

its particular use. Ht is net te be found in any dic-

Hionary, or in any literature, prior to its construction

ws a trademark, to indieate a first-class quality of

sleomargarine sold by plaintiff We have already ar

vned to some extent that no false or deceptive sugges

Hien isin it. The Bureau oficers probably imagine that

because ** Cream’? is part of the word it must needs im

nly that cream is a constitutent ef the product. Much

researeh is not necessary to ascertain that eream itself

is a term of various meanings,

Cream as a noun has at least seven definitions of

Which only one refers te the oily or butvraceons peurt

of milk’? which gathers on top when the milk is lett

undisturbed,

Cream also has at least six definitions as a verh,

Murray, Eng. Diet. (1893), pp. 1149.50

(ne of its definitions by the last cited authority is

this:

36

3. *The most excellent element or part; the best

of its kind: the choice part; the quintessence.”’

We quote from gnother standard authority one of

its 6 definitions of cream:

“4. The best part of a thing; the choice part;

the quintessence: as, the cream of a jest or story ”?

Century Diet. (1911), p. 1337

Perhaps the inventor of the word ‘*Creame’’ as a

trade-mark for its present use on Oleo packages hal

in mind the idea that this product was the Cream 0°

Oleomargarine’’, or the best of that article (to follow

literally one of the quoted definitions). To express ex

cellence the word cream is of wide and familiar use.

The Cream’? trademarks have been held good:

Braun v. Coyne, 125 Fed. 35

Price Co. v. Ty fe, 45 Fed. Too

If Cream?’ is good, **Creamo”’ is certainly a more

fanciful and less descriptive, less venerie word or

brand fora trademark,

See as to good marks:

Tavlor’s Persian thread”

Taylor v. Taylor, 2 Eq. Rep. 290 (25 1. J.

(Ch. 255)

“Dunn's Fruit Salt baking powder’ (41 Ch.

Dd. 459)

“Sliced animals’? (a confection), 98 N.Y. 99

—«'! White House’ coffee

Dwinell Wright Co, v. Co-operative Supply

('o., 148 Fed. 242

In ISSZ in a ease in New York, plaintiff sued for an

injunction on a ‘telaim to the exelusive use of the word

ALDERNEY in) connection with Oleomargarine”’

The Court (per Judge Vax Brent) held:

en ees

>

" oDG

In respect to Oleomargarine, the use of the

word * Alderney’ is entirely arbitrary and in no

respect deseriptive of the article, and the case of

Hier agst, Abrahams (82 N.Y. 519) sustains us a

trademark application of such arbitrary word,

even TH used in conection with others’? (489).

Lanferty ve Wheeler, 63 How. Pr. 488

It appears scarcely necessary at present to refer to

more than a few cases, sustaining our mark, as. the

Government does not appear to dispute its Validity,

When a trade-mark has been established and ap-

proved three or four times, and has been long used and

& Valuable good will built up, where is the statutory

power in the Department of Agriculture to deprive

plaintiff of its property-right therein by its withdrawal

and reversal of prior approval and rulings of its pred

cessors !

This identieal point) was deeided positively an

regard to the issue of a patent, holding that

Shen granted there is no power to reverse that order

hy those authorized to issue the patent. We respect-

fully submit that a trade-mark such as ours is gvov-

erned by the same principles as a patent, there being

ho existing provision of law authorizing the B.A. |.

to reverse and cancel the approval given to sueh use.

McCormick ve Aultman, 169 U.S. 609

That ruling is based on an important principle, ap

plicable also to the ease at bar.

The great stress in the learned brief for the Govern.

ment is laid on the claim that the Federal Bureau offi

eers have a continuous, uninterrupted — and

inexhaustible power to appreve or to re

voke oor revise trade labels oor marks: and

re

that their action approving or revoking the use thereof

is not subject to any jufdical review. To support that

contention we Observe the Government cites a decision

of the District Court in New York under the tea in

speetion Net of March 2, 1907, in which the powers of

the Board of Examiners of tea were considered,

Macey ve Browne, 215 Ped. 456

But an appeal was prosecuted from that ruling, ana

the judgment of Judge Hocait was reversed, the Court

of Appeals incan opinion by JIndge Lecomps (Judges

Cove and Ward concurring) holding that the Examin

erscof ten had exeeeded their powers, Tt was held:

“Within the field of investigation confided to

them, the Board of Examiners are the sole judges;

but they have been given ne authority te extend

the field of investigation bevond the limits staked

anit ben Congress. ""

Maev vo Browne, 224 led. S61 Creversing same

ense, 21S Fed, 406)

That ruling expresses the ground of our preseni

snit, that the honorable officers of the Department of

Agriculture are to restrain their authority within the

beld staked ont for them by Congress.

The citation of other decisions concerning the Scope

of executive powers invelving discretion reveals noth

ing in econtliet with our contentions, Several of the

citations refer to the diseretionary powers of the i. ot

Lana Department in reference to the disposal oft public

ands, One decision which is cited is a fair type. Tt

holds that the Interior Department decision on a sub

jeet within their diseretionary powers is tinal, but the

Court (per Mr. Justice Brewer) adds that itis *tequally

true’ that the action of the Land Department cannot

—- 39

override the expressed will of Congress, or convey

away public lands in disregard or defiance thereof’,

Burfenning v. Ry., 163 U.S. 323

That ruling is in principle. the same as was an

heuneed in the last Macy v. Browne decision.

See, also, City v. ay... “16 Fed. 735

It may be well to ask whether, if the finding of the

lepartment is to be treated as conclusive, the plaintitf

,

may not rely on the ‘conclusive’? effeet of the ap-

provals of its tradeamark ‘*Creamo”? by the same De- {

partment in L907 and in 1912, as well as by the Inters@

h iy? rer Department in 190g?

4 No attempt has heen made by learned counsel for the

Government to point out any statute giving power to

withdraw an approval after it has been acted on for

Sears and large sums have been expended on the faith

of that approval,

There has been ne change of circumstances.

“Creamo as a brand on the product to be sold, has

hot changed in meaning since 1904. It was as sug-

xestive then as now, and so in 1907 and 1912, when the

Department of Agriculture approved it, officially and

i tter considerable attention to details of the label sub-

mitted (Ree. pp. 3054), The superior officers in

charge prior to L913 doubtless had the proper idea that

*“Creamo”” was a fictitious, original word, proper as a

trademark, and that, if it suggested anything, it was

merely the claim of the owner to superior excellence in

Llie procnet designated thereby,

“One may make a trade-mark out of a name or

phrase whieh has some element of suggestion

about it, *Ceresota’ is a good trade-mark for

flour, although perhaps it is made up by the addi-

hi)

tion to the name of the goddess of grain of the last

two svilables of the three hard wheat states of

Minnesoter and the Dakotas.”’

Chapin Sacks Co. ve Creamery Co. 251 ed,

ye)

But, we should not prolong this argument,

That the remedy by injunetion is appropriate, if our

other grounds of suit are well taken, seems clear on

principle and authority. The remedy by injunctive or

ders and decrees to protect property las been so often

eranted in stmilar cirenmestances to prevent official

action in exeess of statutory powers that it seems

scarcely needful to go further than cite a few familar

instances thereof,

Noble ve Logging Co. 147 UL S. 165

Caldwell vo Robinson, 59 Fed. 653

Hoover vo MeChesney, ST Fed. 484

La Chappelle ve Bubb, 69 Fed. 482

Bank vo Merchant, IS Fed. S41

Kirwan v. Murphy, 83 Fed. 275 (this Court)

We respectfully submit that the decree of the Dis

trict Court is in accord with equity, sound principle

and fair dealing between the Government and its cit

yens, and that it should be affirmed.

S. Mayxer Warnacer

SHeparp Barneras

Solicitors and of Counsel for Appelles

November, 1O16