Rogers & Brother v. Rogers 53 Conn. 121

Rogers & Brother vs. Cephas B. Rogers and others.

In 1858 two brothers named Rogers formed a copartnership for making silver-plated spoons, forks and knives, under the name of “ Rogers & Brother,” and in the following year a corporation was organized by them of the same name and for the same business, they being the principal stockholders. The firm and afterwards the corporation had adopted and used as a trade-mark, stamped upon the backs of the articles made, “ ^Rogers & Bro. A 1.” In 1883 the defendants, a firm consisting of three partners of the name of Rogers, one of them being C. B. Rogers, under the name of “ C. Rogers & Bros.,” previously engaged in the making of other plated ware, entered upon the same manufacture and stamped upon their ware in the same way the following trade-mark, “ C. Rogers & Bros. A 1.” It was found that the word “Rogers ” had for a long time been the conspicuous and valuable thing in various trade-marks used by different concerns upon such goods, and that the defendants in commencing the manufacture had in view the popularity in the market of plated goods hearing a stamp with that name, but that they used the stamp to designate their own manufacture and there was no intentional misrepresentation on their part. It also appeared that the mark “ A 1 ” was in common use as a designation of the quality of goods. It was also found that the plaintiffs’ goods bore a very high reputation in the market; also that the defendants’ trade-mark would without difficulty be distinguished from the plain*122tiffs’ by dealers in tbe articles, and by retail buyers who looked beyond the word “ Rogers,” but that retail buyers who regarded only that word would be liable to confound one with the other. In a suit for an injunction against the use by the defendants of the trade-mark “ C. Rogers & Bros.,” and also against the use of the word “ Rogers” in any trade-mark upon such goods, it was held that an injunction ought not to be granted against either. (Two judges dissenting.)

A manufacturer has the right to use his own name as a mark upon his goods although it be the same name with that of another manufacturer of the same goods, who makes the name a part of his own trade-mark, where there is no false representation in such use; and the majority of the court regarded the absence of all fraudulent designs and acts as established by the finding of facts in the court below.

[Argued June 3d

decided August 21st, 1885.]

Suit for an injunction against the use by the defendants of the plaintiffs’ trade-mark, for an account, and for damages ; brought to the Superior Court in New Haven County. The plaintiffs were a joint stock corporation by the name of “ Rogers & Brother,” and the defendants a copartnership by the name of “ C. Rogers & Brothers.” The case was heard before Beardsley, J., and the following facts found:—

The plaintiff corporation is located at Waterbury, in this state. Ever since its organization, in December, 1859, it has been extensively engaged in the manufacture of silver-plated spoons, forks and knives, and its yearly sales of such goods have, during that time, increased from $50,000 to $500,000, and its goods have had and have a high reputation.

About the year 1847, three brothers, all now deceased, namely, William, Asa H. and Simeon S. Rogers, engaged in the manufacture of electro-silver-plated spoons, forks and knives, at Hartford, in this state, under the copartnership name of “ Rogers Brothers.” They were among the first in this country to apply the process of electro-plating to the manufacture of such ware. They were honest and skillful in their art and business, and by reason of these personal qualities, as well as the then novelty of the art of electro-plating, the goods made and sold by them under their copartnership name obtained a high reputation in the public market. The spoons, forks and knives manufactured' *123by them were stamped thus : “ ^Rogers Brothers A 1,” or ‘6 *Rogers Bros. A 1; ” and such stamps then became well known in the trade as indicating goods manufactured by that firm, and were stamped upon all their first quality goods, and acquired a trade value, and the goods became known and had a valuable reputation as the Rogers goods.

In ,1853 the copartnership of Rogers Brothers was organized into a joint stock corporation, under the name of the Rogers Brothers Manufacturing Company, and the manufacture of electro-silver-plated spoons, forks and knives was carried on by the corporation at Hartford until about the year 1862 ; and during all that time the spoons, forks and knives so manufactured were stamped as the goods manufactured by the copartnership which preceded the corporation had been, and such stamps continued to be well known in the markets as indicating the goods manufactured at Hartford by the concern that had been originally established by the Rogers brothers, and the goods continued to have the valuable reputation before mentioned.

In 1856 Simeon S. Rogers, one of the brothers forming the original copartnership, but having no employment with the above-mentioned corporation, made some business connection with the Hartford Manufacturing Company, a corporation then engaged in a similar business with the Rogers Brothers Manufacturing Company in Hartford, and during such connection (which continued till 1858), spoons, forks and knives made by the Hartford Manufacturing Company were stamped “ Rogers A 1,” without objection from either of the other brothers or the Rogers Brothers Manufacturing Company, and by such stamp the goods manufactured by the Hartford Manufacturing Company became well known in the public market. The latter company was engaged in this business before Simeon Rogers was connected with it, but did not then use any stamp which had the name Rogers in it; and after the connection of Simeon Rogers with it ceased, the corporation was in 1859, on application of the Rogers Brothers Manufacturing Company, enjoined against using any stamp with the word “ Rogers ” in it

*124In 1856 or 185T William Rogers, another of the brothers, being then the president of the Rogers Brothers Manufacturing Company, disconnected himself from that concern, and with others organized a new corporation in the same business, under the name of “ Rogers, Smith & Co.,” and the spoons, knives and forks manufactured by this corporation were sent into the market stamped “ * Rogers & Co., A 1,” or “* Rogers, Smith & Co., A 1,” and these stamps continued to be so used, without objection from any one, until about the year 1862; and the goods so manufactured and stamped had a good reputation in the public market.

In 1858 these two corporations were consolidated, William Rogers becoming president of both, and their business was conducted as if one. The consolidation was confirmed by the General Assembly in 1862, during which year both corporations failed.

In 1858 Asa H. Rogers and Simeon S. Rogers, two of the brothers, formed a copartnership in Waterbury under the name of Rogers & Brother, and, under that name, engaged in the manufacture of electro-silver-plated ware. The partnership adopted and used in its business the stamp “ *Rogers & Bro., A 1,” and stamped the same upon the back of the shanks of all its first quality forks and spoons. The said Asa and Simeon were well aware that their name “Rogers,” as a part of the stamps1 previously used, had already, by reason of its use in those connections, upon spoons, knives and forks as before mentioned, acquired a reputation of value in the public market, and they adopted, claiming the right so to do, their partnership name and said stamp in the expectation that they would thereby be able to avail themselves to some extent of the reputation existing in the market in connection with the manufactures of the Hartford concerns before mentioned, and in which they had been two of the three constituting the firm of “Rogers Brothers,” and they prepared and circulated extensively among the trade a circular setting forth this fact.

They continued to carry on business as partners until *125December, 1859, when the plaintiff corporation was organized, and acquired by purchase all the property and business of the firm, including its stamp and good will, and has ever since used the stamp in its business, always stamping it upon all its first quality knives, forks and spoons, upon the back of the shank of the forks and spoons, and this use of the stamp by the plaintiffs was never objected to by any of the brothers. The said Asa H. and Simeon S. were associated with others in the formation of the corporation, and became stockholders and officers therein.

In 1862 William Rogers, Asa H. Rogers and Simeon S. Rogers, having then no connection with the plaintiff company, formed, and for some time thereafter continued a business connection with the Meriden Britannia Company, a corporation located at Meriden, under certain contracts, by virtue of which the Britannia Company claimed the right, and thereupon commenced, to stamp spoons, forks and knives of its manufacture with the stamp “ 1847, Rogers Bros. A 1,” and issued to the trade circulars, recommending their goods so stamped, and it has ever since claimed the right to so stamp such articles of its manufacture, and, under such claim, it has put upon the market a very large amount of goods so stamped, and such goods have had a good reputation in the public markets. At the time this connection was formed by the three Rogers brothers with the Meriden Britannia Company there was no other company, except the plaintiff, doing a similar business, and using a stamp which had the word “ Rogers ” in it.

In the year 1865 the Meriden Britannia Company obtained, by arrangement with the plaintiff corporation, a .controlling interest in its stock, and the plaintiff corporation became also interested in the stock of the Meriden Britannia Company, and this arrangement has ever since continued between them. The motive of this arrangement was to avoid litigation respecting the Rogers name, and to provide for its use in common by the two concerns.

In 1865 William Rogers left the employment of the Meri*126den Britannia Company, and a copartnership was formed in Hartford under the name of “The William Rogers Manufacturing Company,” for the purpose of manufacturing electro-silver-plated spoons, forks and knives, with which copartnership he remained connected until he returned to the Meriden Britannia Company in 1868, under a further contract. This company adopted and used the stamps “|Wm. Rogers & Son, A A,” and “1865, Wm. Rogers Mfg. Co. A A.”

In 1872 a joint stock corporation was formed, under the same name, to succeed the copartnership of the William Rogers Manufacturing Company, and to carry on the same business, and this corporation has ever since carried on such manufacture extensively, the plaintiff corporation and the Meriden Britannia Company having had for several years a half interest therein ; and it continued and still continues to use said stamps.

During the period of manufacture by the copartnership and corporation of the William Rogers Manufacturing Company, the goods manufactured by such concerns respectively have been stamped with said stamps, and sent into the market in large quantities; the concerns respectively claiming the right so to do; and such goods so stamped have had and have a good reputation in the market.

In June, 1871, Asa H. Rogers and William H. Watrous formed a copartnership for the manufacture of electro-silverplated spoons, forks and knives, in Hartford, under the name of “ W. H. Watrous,” but Asa H. Rogers was not publicly known as interested therein, although he gave his time and service to it from January to September, 1871, and was an equal partner with Watrous.

In September, 1871, a joint stock corporation was formed, under the name of the “ Rogers Cutlery Company,” to carry on the same business. The stockholders appearing upon the stock book of the company were Theodore Rogers of Waterbury, who was not of the family of the Rogers brothers before mentioned, but a salesman with the plaintiff corporation, H. H. Moore, W. H. Watrous and the *127wife of the latter. Theodore Rogers was the only person of the name of Rogers openly known to be connected with the company or its name. Asa H. Rogers was never openly connected with this corporation upon its records, but was the real owner of one-half of its stock.

The spoons, forks and knives made by this corporation were stamped with a stamp containing the word “ Rogers,” and were sent into the market from 1872 to March 14th, 1879, so stamped, the knives in considerable quantities, the spoons and forks not to any great extent.

In March, 1879, an arrangement was made between the William Rogers Manufacturing Company and the corporation of the Rogers Cutlery Compan}', by which there was an exchange of stock, and both companies came under the same management, and the president of the Rogers Cutlery Company became president and manager of both companies. Since this arrangement the Rogers Cutlery Company has stamped its knives generally with the stamp “ Rogers Cutlery Company,” and it has issued business circulars to the trade.

Since the arrangement, before mentioned, of March, 1879, the two concerns, the William Rogers Manufacturing Company and the Rogers Cutlery Company, although, for purposes of trade and in public, keeping up their distinct organizations and names and stamps, have been in fact and actual operation but one concern, and both under the superintendence and management of W. H. Watrous; and besides the stamps before mentioned, they have also sometimes used the stamp “Rogers Silver Plate Co.” upon job lots of spoons and goods. There is no company, in fact, of the name of the Rogers Silver Plate Co., and the stamp was arbitrarily adopted by these corporations for the special purpose mentioned.

In 1862 the Hartford corporation of Rogers, Smith & Company, before mentioned, failed and went into insolvency by assignment in the probate court of Hartford. Soon after a new corporation was formed in New Haven under that name, and which purchased the assets of that *128corporation, for the purpose of manufacturing electro-silverplated spoons, forks and knives. About 1868 this corporation sold out to the Meriden Britannia Company, and its business was removed to Meriden, and its nominal organization has been ever since kept up, but its business has been actually carried on by the Meriden Britannia Company, and that has been so understood by the trade generally. From the organization of the corporation to the present time' large quantities of goods have been sent into the market stamped with its name, and the corpora tion has been held out to the public as carrying on an inde pendent manufacture, and their business has been kept separate and distinct. Neither of the Rogers brothers before mentioned has been in any way directly connected with this corporation.

In 1866 a joint stock corporation was formed at Meriden under the name of A. H. & S. S. Rogers Brothers, in pursuance of a contract between the Meriden Britannia Company and Asa and Simeon Rogers ; and spoons, knives and forks were thereafter, to a very limited extent, sent into the market by the Meriden Britannia Company stamped “ A. S. & S. S. Rogers Brothers.” The corporation, although having a nominal organization, never actually manufactured goods.

Of these several concerns, with which the three Rogers brothers, or some of them, were connected, none has been in business since 1862, except as herein before found.

The goods made by the Meriden Britannia Company, William Rogers Manufacturing Company, Rogers Cutlery Company, and the plaintiff, and stamped as aforesaid, have always been equal to or better than the goods made by the three Rogers brothers, and have always had a high reputation in the market.

In 1863, and until the arrangement above stated of the Meriden Britannia Company with the plaintiff corporation in 1865, that company was the only competitor of the plaintiff using a “ Rogers ” stamp.

The plaintiff corporation pf Wa.terbury, the Meriden *129Britannia Company of Meriden, the William Rogers Manufacturing Company, and the Rogers Cutlery Company of Hartford, although having had, to a certain extent, common stock interests, as before stated, have conducted their respective manufacturing business and made their sales independently of each other and in the same manner as before such arrangements of stock interests. They have been competitors in the public markets. Each has claimed for itself the manufacture of a superior quality of goods. Each has claimed in certain advertising circulars to be the manufacturer of the only “ genuine Rogers ” goods, and to be legitimately entitled to the reputation which was attached to the original “ Rogers Brothers.”

All the goods made by the plaintiff stamped with said stamps have been of superior quality, and have had a high reputation in the market. The standard of quality adopted and used by the three Rogers brothers has not only been maintained, but the amount of silver put upon the goods has been from time to time increased, and the quantity of silver now used by the plaintiff is twenty-five per cent, in excess of that used by Rogers Brothers. The plaintiff has also from time to time made improvements in the style and workmanship of its goods, and has greatly improved the quality of its spoons by thickening the shanks.

The reputation of the plaintiff’s goods is very much higher than was that of the goods made by the copartnerships, Rogers & Brother and Rogers Brothers, and the plaintiff’s knives, forks and spoons are of a quality much superior to those made by those copartnerships or by any other party prior to the organization of the plaintiff corporation. Said stamp of the plaintiff has never been used except upon first quality goods, and the use of the same has been and is of great value to the business of the plaintiff.

By reason of the numerous stamps on spoons, forks and knives containing the word “ Rogers,” as before mentioned, and of the efforts of the various concerns who have used such stamps since 1847 to promote the sales of their goods *130as “ Rogers goods,” the word “ Rogers ” has become the conspicuous and familiar part of such stamps with a large class of retail buyers ; and while jobbers and dealers, and those retail buyers who are informed of the facts, readily distinguish between the stamps of the different manufactories by the words or symbols which such stamps do not possess in common, those retail buyers of the articles who buy by the stamp or the single article, look only to the word “ Rogers,” and are for this reason liable to confound the various stamps ; but generally the retail buyers who desire any information on the subject of the., manufacture of the goods, rely upon the dealer for such information.

The plaintiff corporation, since its organization, has circulated price lists and advertisements extensively in the markets and among the trade.

William Rogers died in 1873, Simeon S. Rogers'in 1874, Asa H. Rogers in 1876.

In the year 1866 the defendants, who are brothers, formed at Meriden their present copartnership under its present name of C. Rogers & Brothers, and there commenced the manufacture and sale of electro-silver-plated coffin trimmings. From that time to the present they have carried on business at the same place, and under the same copartnership name. The business so carried on has been principally the manufacture and sale of electro-silver-plated coffin trimmings, but for several jmars they have also dealt in and held themselves out to the public as manufacturers of a large variety of articles of furniture hardware, and of electro-silver-plated spoons, forks and knives. The articles of furniture hardware dealt in by them have been partly of their own manufacture; the spoons, knives and forks wholly of the manufacture of others, except as they were at one time connected with Charles Parker, under an arrangement which appears in the case of Meriden Britannia Company v. Parker, 39 Conn., 450.

The defendants have never stamped any of their goods with any mark, name or trade-mark, except as the spoons, knives and forks made by them recently have been stamped. *131as herein stated. During the year prior to the commencement of this suit the defendants made extensive preparations and a large investment of capital for the purpose of carrying on the manufacture of silver-plated spoons, forks and knives, in connection with their other manufacturing business. Including this manufactory, their present investment of capital is between $300,000 arid $400,000, and they employ about two. hundred hands. Their business has gradually increased, and is now, and for some time has been, large and extensive, being carried on in all parts of the United States, and, to some extent, in the British provinces. They employ several local agencies and numerous traveling salesmen, and'have acquired in such business an extended and valuable business reputation, doing a business in coffin trimmings averaging from $45,000 to $60,000 a year. A little less than one fourth of their customers deal in silver-plated spoons, forks and knives.

Since they have engaged in the manufacture of silver-plated spoons, forks and knives they have stamped upon the articles so manufactured by them, “ O. Rogers & Bros. A 1,” and they have sent such goods into the market mainly by their usual agencies and salesmen.

This stamp, “ C. Rogers & Bros. A 1,” is stamped upon the backs of the shanks of the spoons and forks in the same manner and place as the plaintiff’s goods are and have been stamped. The method of stamping their name upon such articles manufactured by them, and the locality of the stamp upon the article, has been that commonly employed by manufacturers of such silver-plated articles for many years. The mark “ A 1 ” has been frequently used by manufacturers of such ware for many years as a mark of quality, and is so regarded in trade.

The purpose of the defendants in stamping their firm name upon the spoons, forks and knives so manufactured by them has been to indicate to the public that they are the manufacturers of the goods so stamped. But the defendants in commencing the manufacture of such articles had in view the popularity in the market of such goods bearing *132a stamp containing the word “ Rogers,” and one inducement to commencing such manufacture was the advantage they might derive from having their goods so stamped. The allegations of fraudulent design and acts on their part contained in articles eleven to sixteen of the complaint are found not to be true.

Between the stamps so used by the defendants and the stamps used by the plaintiff upon similar articles manufactured by them respectively, the dealers and jobbers in such articles have no difficulty in distinguishing. And this is also true of those retail buyers who look beyond the word “ Rogers; ” but those who regard the word “ Rogers ” only would be liable to confound one with the other, as in the case of the various “ Rogers ” stamps before mentioned. Retail buyers sufficiently acquainted with the various “Rogers ” stamps in the market, to distinguish between the same, would have no difficulty in distinguishing between the two stamps of the plaintiff and defendants, but the general resemblance between the two stamps is such that a person knowing that of the plaintiff and not knowing that of the defendants, might, upon referring to it, but not reading it attentively, mistake it for that of the plaintiff.

Upon the foregoing facts the plaintiff claimed, and asked the court to hold, as follows :—

1. That the defendants should be enjoined from the use of the combination of words, “ O. Rogers & Bros.,” on silver-plated knives, spoons and forks.

2. That the defendants should be enjoined from such use of the word “ Rogers ” as a part of any stamp or mark on the shank of silver-plated spoons and forks, in connection with or without the letters and figure, “ Al,” as that purchasers will be liable to believe that spoons and forks so marked and made by the defendants were made by the plaintiff.

3. That the defendants should be enjoined from the use of the word “ Rogers ” in any way, as a stamp upon silver-plated knives, spoons and forks.

*133But the court overruled these claims, and rendered judgment for the defendants. The plaintiff appealed.

F. Chamberlin and O. H. Platt, with whom were J. P. Platt and H. R. Mills, for the appellants.

The plaintiffs are lawfully and honestly using the stamp' “ ^Rogers & Bro., A1,” upon silver-plated spoons, forks and knives, and have used and advertised said stamp as their trade-mark continuously since 1859. The defendants, members of another family, and previously engaged in the manufacture of plated coffin trimmings, were induced, among other things, by the popularity of the Rogers goods, and the advantage they might derive from stamping such goods with that name, to commence the manufacture and sale of silver-plated spoons, knives and forks, and have stamped the same “ C. Rogers & Bros., A 1,” so that the goods of the defendants are liable to be mistaken for goods of the plaintiffs.

Except as associated with Charles Parker in the use of this same stamp (which use was enjoined by the court in Meriden Britannia Co. v. Parker, 39 Conn., 450), the defendants have never, until the spoon and fork business herein complained of was commenced, used any stamp, mark or trade-mark upon any of their goods, which include silver-plated coffin trimmings and a large variety of articles of furniture hardware, and of electro-silver-plated spoons, forks and knives. The defendants, in commencing the manufacture of such articles, had in view the popularity in the market of the similar goods bearing a stamp containing the word “ Rogers,” and one inducement to commencing it was the advantage they might derive from having the goods so stamped.

This stamp,“ C. Rogers & Bros. Al,” is stamped upon the backs of the shanks of the spoons and forks in the same manner and place as the plaintiffs’ goods are and have been stamped. The similarity of the stamps best appears upon the goods themselves as they are before the court; but the court below has found that “ the general resemblance be*134tween the two is such that one knowing that of the plaintiff and not knowing that of the defendants, might, upon referring to it, but not reading it attentively, mistake it for that of the plaintiffs; ” and that “ those who regard the word ‘ Rogers ’ only would be liable to confound one with the other.”

The pleadings of the plaintiffs set forth substantially the foregoing facts, and allege that the defendants commenced the manufacture of silver-plated spoons, knives and forks, and stamped them “ C. Rogers & Bros. A 1,” and that said stamp is a close imitation of the plaintiffs’ stamp “ ^Rogers & Bro. A1; ” also that the plaintiffs, on the first day of August, 1883, requested the defendants to cease using the stamp so used by them as aforesaid, which they refused to do. The defendants not denying such request, it is deemed to be admitted ; and they also admit that they have so used said stamp and claim the right so to do. The use by the respective parties of the marks “ *Rogers & Bro. A 1 ” and “ G. Rogers & Bros. A1,” is admitted substantially as alleged by the plaintiffs.

But the defendants deny any fraudulent intent and acts, as set forth in paragraphs eleven to sixteen of the complaint, and aver that they use their own partnership name, believing they have the right so to do—stamping it upon their manufactured articles in the usual manner, and for the sole purpose of indicating that such articles were manufactured by them, and availing themselves of the reputation which they have acquired in the public markets. The principal contention between the parties in their pleadings grows out of the allegations of positive fraudulent acts, or of constructive fraud resulting from the acts, set forth in the paragraphs of the complaint mentioned.

The affirmative allegations of the plaintiffs are met by the affirmative, counter and inconsistent allegations of the defendants ; thus creating an issue to be passed upon by the trier, who distinctly negatives the claim of the defendants in the finding that the “ popularity which the defendants had in view, and of which they wished to derive the advan*135tage,” was. not that which they (the defendants) had acquired in their business, but was “ the popularity in the markets of spoons, knives and forks bearing a stamp containing the word ‘ Rogers,’ ” and which it clearly appears, from the facts proved, had been established by the plaintiffs and others, under whom the defendants do not claim. He then finds that “ the allegations of fraudulent design and acts on their part, contained in articles eleven to sixteen of the complaint, are found not true.”

The defendants, quoting only the last sentence of this finding, claim that the element of fraud “ is negatived in every form ” and entirely eliminated from the case. But the plaintiffs contend that the effect of the finding is not to strike out from the case all fraud, but to convey accurately to this court the precise fraud which the defendants had in mind as the “ inducement to commence the business,” and which they are seeking to accomplish. To do this the court finds that—(1) “ The business of the defendants has been principally the manufacture and sale of silver-plated coffin trimmings.” (2) “ The spoons and forks dealt in by them have been wholly of the manufacture of others, except as they were connected with Charles Parker.” (3) “ They never have stamped any of their goods with any mark, name or trade-mark, except as the spoons and forks made by them recently have been stamped as before stated.” (4) “ The purpose of the defendants in stamping their firm name upon the spoons, etc., manufactured by them, has been to indicate that they were the manufacturers. But the defendants, in commencing the manufacture of such articles, had in view the popularity of goods bearing a stamp containing the word ‘Rogers,’ and one inducement to commencing such manufacture was the advantage they might derive from having goods so stamped.”

Actuated by these motives they have put this stamp upon their spoons, knives and forks, and without other representations, simply sent out the goods so marked, allowing the stamp to secure to them such advantage as it necessarily must. No direct representations, outside of their stamp, *136were needed, and they were careful so to conduct themselves that extrinsic acts of fraud could not be proved against them. And so the court below has set out the facts, stating explicitly the knowledge, animus, inducement and circumstances of their “ commencement” of the manufacture and use of the stamp, and then finding that allegations of other fraudulent acts and design were not true.

The stamp “ ^Rogers & Bro. A 1 ” is the plaintiffs’ trademark, and not merely a trade name, which they use in their business, as the defendants have used their partnership name “ C. Rogers & Brothers” without stamping it on their goods —not merely “ Rogers ” or their own corporate name “ Rogers & Brother,” but “ * ” (the symbol), “ Rogers ” (the name), “ & ” (the connecting character), “ Bro.” (the abbreviation)—all connected and allocated, and used with the affix “ A 1.” Thus connected and stamped upon our goods, this is our trade-mark. Its use, and the purpose of its use, by the plaintiffs, are set forth and admitted in the pleadings. The pleadings allege and admit that the plaintiffs have always used this stamp for the purpose of indicating the maker of the goods.

“ That any name, symbol or device, adopted by an individual, corporation or business firm for the purpose of designating the origin or ownership of goods manufactured by them, will be protected as a trade-mark, is well settled law. The name of a corporation or a partnership accomplishing the same object, will be protected upon the same principle.” Holmes, Booth & Hayden v. Holmes, Booth & Atwood Manf. Co., 37 Conn., 292. This name is the best possible trademark, as it, of itself and by its own force, shows the origin of the goods and the name of the manufacturer.

Upton, in discussing the question what constitutes a trademark which will be entitled to protection, after a review of the cases, and the opinions of eminent judges, says:—“ The simplest case of a trade-mark fulfilling the condition of 'the law, and thereby entitling him who adopts it to protection in its exclusive use, is the name and address of the manufacturer.” Upton on Trade-Marks, 99. “ It is precisely to *137the extent that any name, device or symbol, adopted as a designation for merchandise, is effectual in performing the office of the name and address of the manufacturer, that it complies with the essential requisite to the acquisition of an exclusive right to its use.” Id., 102. After referring on pages 109-112 to the cases of Thompson v. Winchester (“Thompsonian Medicines”), Singleton v. Bolton (“Dr. Johnson’s Yellow Ointment”), and Canham v. Jones (“Velno’s Vegetable Syrup”), as cases where the name of the person had acquired, as to those medicines, such generic meaning as not to be a proper trade-mark, he says, on page 113 :—“ These several eases of exceptions to the general rule, for the reasons which make them exceptional cases, serve to illustrate the character of the principle upon which the general rule is based. Certainly no name or mark or symbol that can be devised more faithfully fulfills the condition of designating the origin or ownership of the manufactured article than the name and address of the manufacturer. But when this precise name has been previously adopted, and has become known as the brand or trade-mark for the production of the particular person whose name it is, if it be used by another person who happens to have the same name as a designation for his production of a similar character, it is obvious that by reason of its previous adoption and notoriety it altogether fails to distinguish and identify the manufacture of the second party, and on the contrary, that such use must necessarily operate (as in such eases no doubt was the design,) to produce the belief on the part of the public that they are the productions of the principal manufacturer, with whose goods it has become identified.” Id.

Given a trade-mark which, through a quarter of a century of honest work, has come to be a guaranty of the highest excellence of the goods which bear it, which has become known as the synonym of honest goods in all the markets of America, and which, having been stamped upon each article of the plaintiffs’ goods, “ has become of very great value” to them; can a new manufactnrer, knowing the popu*138larity of the stamp, and entering upon a similar manufacture 'with a view to the advantages which he may derive from such popularity, stamp his similar articles with substantially the same stamp, and start off in business with the advantage of prestige and reputation which the plaintiffs have so built up and earned? Manifestly such a thing would be a gross injustice.

But these defendants are obliged to reply: “Yes; he may if his family name happens to be the leading and significant word in the trade-mark.” Is the reply sustained ? and upon what possible ground? The defendants’ only response to this question is the iteration and reiteration of the proposition—“ Every man has a right to do business in his own name.”

This general proposition—with the qualification that he so do his business that he does not, in intent or result, injure his neighbor previously established in the same business, may be admitted. That Charles Parker cannot use the stamp here used by the defendants, even when used by request of the defendants and in the manufacture of goods for the defendants, has been decided by this court in 39 Conn., 450, as we have seen.

In deciding this question of infringement, the only difference between the case of one who uses his own name' for a stamp and one who uses a name not his own, is, that in favor of the owner of the stamp claimed to have been imitated and infringed, the former is presumed to use it for an honest purpose, while as to the latter fraud is presumed. In Parker’s case the injunction was issued in spite of a clear finding of good faith, on the ground that the injury to the plaintiffs was the same. The wrong to the plaintiffs here is precisely what it was to the Meriden Britannia Co. in Parker’s case—the injurious appropriation of the good will of' the plaintiffs’ business, and of the popularity of their goods in the markets.

But here the finding, while negating certain affirmative allegations of the plaintiffs, and also affirmative averments of the defendants in reply, expressly finds all necessary *139fraud in the following clause:—“ The defendants, in commencing the manufacture of such articles, had in view the popularity in the market of such goods bearing a stamp containing the word ‘ Rogers,5 and one inducement to commencing such manufacture was the advantage they might derive from having their goods so stamped.55

The “ necessary consequence of their acts,” in manufacturing by their own hand, and selling, the same goods, bearing the same stamp, which they had previously sold when manufactured for them by Parker, in pursuance of their contracts with him, would be to inflict upon the present plaintiffs damage similar to that which they had inflicted upon the Meriden Britannia Co. by the former infringement, and to obtain for themselves alone profits which had before been divided between them and Parker.

Our case in this aspect is like that of Royal Baking Powder Co. v. McQuade (U. S. Circuit Court, Illinois District), Cox’s Trade-Mark Cases, 671, in which Judge Blodgett says :—“ I think it is very manifest that there was an intention on the part of the manufacturer of this, the defendant’s powder, to obtain the benefit of whatever labor and effort the complainant has used to give reputation and character to his goods.55 And like that of Trainor in which Judge Clifford says:—“ Of course, they meant to secure to their goods a preference which they otherwise would not have commanded j and it is difficult, if not impossible, to see how any such advantage could be gained, unless the simulated trade-mark would enable them to sell their fabric as that of the injured party.” Trainor’s Case, 101 U. S. Reps., 67.

The “ of course55 which Judge Clifford acts upon, is here anticipated by the express finding of the trier. This finding plainly indicates a purpose of the defendants (in commencing this manufacture) to infringe the plaintiffs’ trade-mark, and appropriate to their advantage its popularity as containing the word “ Rogers.” It is equivalent to a finding that they intended to “invade the property of the plaintiffs.’5 Wotherspoon v. Currie, L. R., 5 H. L. Cas., 508. *140And “that the object was to obtain a slice o.f the large business carried on by the plaintiffs.” Baggallay, L. J., in Massam v. Thorley's Cattle Food Co., L. R., 14 Ch. Div., 763-781. Such use must necessarily operate (as in such cases no doubt was the design,) to produce the belief on the part of the public that they are the productions of the first manufacturer, with whose goods it (the name) has become identified.” Upton on Trade-Marks, 113. In his opinion in the case of William Rogers Manf. Co. v. Rogers & Spurr Manf. Co., 11 Fed. Rep., 495, Judge Lowell says :—“ Even if we grant all that has been said about the freedom to use names (and I grant upon that subject much more than has been argued, for I set no limits to that, freedom, excepting interference with acquired rights), the books are full of cases in which defendants have been restrained from using their own names in a way to appropriate the good will of a business already established by others of that name. Croft v. Day, 7 Beav., 84 ; Metzler v. Wood, L. R., 8 Ch. Div., 606 ; Fullwood v. Fullwood, L. R., 9 id., 176; Levy v. Walker, L. R., 10 id., 436 ; Massam v. Thorley's Cattle Food Co., L. R., 14 id., 748 ; McLean v. Fleming, 96 U. S. Reps., 245 ; Devlin v. Devlin, 69 N. York, 212; Filkins v. Blackman, 13 Blatch., 440; Stonebraker v. Stonebraker, 33 Maryl., 252; Shaver v. Shaver, 54 Iowa, 208 ; Churton v. Douglas, Johns. (Eng.), 174. And see 25 Albany L. Jour., 205. All these cases in equity depend upon an appropriation by one person of the reputation of another, sometimes actually fraudulent, and sometimes only constructively so.”

One of the defendants’ briefs in the former hearing of this case opens as follows :—“ It is more than thirty years since Lord Justice Knight Bruce made his memorable declaration in Burgess v. Burgess, 17 Eng. Law & Eq., 257, that “ all the Queen’s subjects have a right, if they will, to manufacture and sell pickles and sauces, and not the less that their fathers have done so before them. All the Queen’s subjects have a right to sell them in their own names, and not the less so that they bear the same name as their fathers; and nothing else has been done in that which is the question *141before us.” But a quarter of a century later (in 1880), in the highest court in Great Britain, Lord Justice James says of that decision :—“ Now Burgess v. Burgess has really been very much misunderstood if it has been understood to say that anybody can always use his own name, as a description of an article, whatever may be the consequence of it, or whatever may be the motive for doing it, or whatever may be the result of it.” Thus the highest court in Great Britain is in accord with the late utterance of Judge Lowell in our United States Circuit Court above quoted.

This stamp, which the defendants propose to use as a trade-mark upon their goods, serves them better than another, only as “securing the advantage of a popularity” not belonging to them, and of which they cannot possess themselves without damage to the plaintiffs. This, it is found, induced them to commence the business. In short, they adopted this business to “ secure the advantage they might derive ” from this stamp. This a court of equity will not permit. Common honesty would suggest the adoption of a stamp to protect one’s own business; here a business is adopted, the “ inducement ” to which is that the defendants hope to be allowed to make use of a stamp which will steal another’s business.

C. R. Ingersoll and C. E. Mitchell, with whom was G. A. Fay, for the appellees.

First.—The facts of the record compel the plaintiff to this position of law—that the plaintiff, as a manufacturer of electro-silver-plated spoons and forks, may (apart from contract) have such a right of trade-mark in the word “ Rogers ” that no other person lawfully engaged in a similar manufacture under that personal name can, as against the plaintiff, stamp the goods of his manufacture with his own name, in the manner customary with silver-plated spoon and fork manufacturers, to indicate the name of the manufacturer of their goods. It is safe to say that, within the entire range of English law, no decided case has yet been recorded to support this proposition. On the contrary, *142we submit that no manufacturer can gain a right of trademark in his personal name merely, as against another manufacturer bearing the same name. For the office of a trademark is to distinguish the goods of the manufacturer using it from the goods of every other manufacturer of the same article dealing in the same market; and this a personal name may not do. And therein lies the occasion for a trad e-mark or symbol, having in itself an absolute distinctiveness, as a substitute for the personal name of the trader. Such symbol can have no significance but its own. It can point to one trader only—the one whose exclusive symbol it is. And, therefore, it cannot be innocently copied by any other trader. Nor, if used by another than the one whose goods it distinguishes, can such use ever be rightful. And this irrespective of motive ; for the injury to the one whose right to use such symbol is exclusive is the same, whether the motive of the infringer be evil or innocent. But a personal name cannot, necessarily, have this distinctive and exclusive significance. It must always be liable to confusion with the same name when belonging, by an equal birth-right, to other traders in the same market. These are elementary principles. They are illustrated by the following cases: Meneely v. Meneely, 62 N. York, 427; Carmichel v. Latimer, 11 R. Isl., 395 ; Faber v. Faber, 49 Barb., 358 ; Clark v. Clark, 25 Barb., 76; Williams v. Brooks, 50 Conn., 280; Canal Co. v. Clark, 13 Wall., 311; McLean v. Fleming, 96 U. S. Reps., 245; Comstock v. Moore, 18 How. Pr. R., 424; Gilman v. Hunnewell, 122 Mass., 139. And, therefore, the U. S. trade-mark act of 1870 forbade the registry of any trade-mark consisting of the “name of a person, firm or corporation onljq unaccompanied by a mark sufficient to distinguish it from the same name when used by other persons.” And the English “ Trade-mark Registration Act” of 1875, 38 and 39 Vict., c. 91, only recognizes “ the name of an individual or firm,” as a trade-mark, when it is “ printed, impressed or woven in some particular and distinctive manner.”

But the right of the manufacturer to protection against *143another’s fraudulent personation of himself by means of a personal name is, none the less, obvious and adequate. And the cases of this sort are abundant. They fall into two general classes—(1) where the complaining manufacturer’s name has been assumed by another, to whom the name does not rightfully belong, for the purpose of personation ; or, (2) where tlie personation is effected by a person to whom the name does rightfully belong but who so uses it, by means of accompanying false devices, as to induce the belief that it is not his own name but is the name of the complaining manufacturer. In both these classes of cases the fraud will be stopped—in the one case the fraudulent assumption of the name, in the other the use of the false devices. In the first of these classes the personation is commonly attempted by the organization of a corporatior under an assumed personal name. The cases particularly relied on by the plaintiff here, William, Rogers Manf. Co. v. Rogers & Spurr Manf. Co., 11 Fed. Rep., 495, Holmes v. Holmes, 37 Conn., 278, and The Thorley Cattle Food Case, 42 L. J., N. S., 851, and L. R., 14 Ch„ Div., 748, are of this class. The Grlenfield Starch Case (Wotherspoon v. Currie), L. R., 5 H. L. Cas., 508, is within the same principle. In Meriden Britannia Oo. v. Parker, 39 Conn., 450, both plaintiff and defendant were using in their stamps an assumed personal name. The court held that the name constituting a part of the plaintiff’s stamp was that of the persons actually concerned in the manufacture of the plaintiff’s goods (which was not the case with the defendant), and, therefore, the entire mark was entitled to protection. But it still refused to enjoin the use of “the mere name.” In the other class of cases, we have noticed, the false personation is accomplished by fraudulent devices connected with the use of the defendant’s rightful name—the effect of the devices being to pervert the rightful significance of the name. Holloway v. Holloway, 13 Beav., 209; Burgess v. Burgess, 3 De G., M. & G., 896; James v. James, L. R., 13 Eq., 421; Fullwood v. Fullwood, L. R., 9 Ch. Div., 176; and Clark v. Clark, supra,—are familiar instances of this *144class. The Thorley Cattle Food Case, in one of its aspects, also conies within it. In all of these cases the use of the fraudulent devices was enjoined, but in none of them the use of the name without the devices. In the editor’s note to Meriden Britannia Co. v. Parker, in 12 Am. Reports, 401, the cases of this class are collected, with the conclusion that “ in such cases the use of such (connected) mark or device or the practice of such acts will be restrained, but not the use of the name.”

The present case cannot be brought within either of these two classes of cases. The firm name stamped by the defendants upon the goods of their manufacture is the firm name under which, as the record finds, they have carried on business as manufacturers for nearly twenty years and which has a valuable reputation in the markets of the country. And “ Rogers ” is the birth-name of each one of the several members of the firm. The finding expressly negates the use by the defendants of any devices or practice of any arts, to give to the use of their own name any wrongful significance. And the only error, complained of in the plaintiff’s appeal is that the court below did not enjoin the defendants from stamping either their firm name merely, or their family name of “ Rogers ” merely, upon their goods.

Second.—The record not only negates the specific allegations of fraud contained in the complaint, but it expressly finds that “ the purpose of the defendants in stamping their firm name upon the spoons and forks so manufactured has been to indicate to the public that they are the manufacturers of the goods so stamped.” It is not possible, by anything else in the finding, to distort this into a finding that the purpose of the defendants has been to indicate to the public that the plaintiffs are the manufacturers of the goods so stamped. But suppose the inference to be admissible, that the motive of the defendants in engaging in'the silver-plated spoon and fork manufacture, and stamping the goods of their manufacture with their name, was to profit by the popularity that had already been given to the “ Rogers ” name in such manufacture. How can the existence of any *145such mental motive, whether as hope, expectation or purpose, rightfully debar the defendants from engaging in such business under their own name, or, when so engaged in it, from carrying it on in precisely the same manner that they might carry it on had their names not happened to be Eogers ? The injury complained of by the plaintiff is that purchasers mistake the defendants’ name, when stamped upon spoons and forks, for the plaintiff’s name. Is this injury affected, in any degree, by the motive of the defendants ? Clearly, the liability to -mistake by the purchaser is equally great whether a good or a bad motive be imputed to the defendants. In the recent case of Singer Machine Manufacturers v. Wilson, L. R., 3 App. Cas., 391, it is said: “But if a man has legitimately a right to the property in an exclusive use of a name, it is of small account to him should it be invaded, whether the invasion comes from a purpose to deceive, or from ignorance or inadvertence, or an honest misconception of the relative rights of the parties.” And so, conversely, it must also be true that if a man has not legitimate^ a property right in the exclusive use of a name, his inquiry into the motive of another man, who has an equal right to the use of the name, is immaterial. Clearly, the right to such exclusive use cannot depend either upon the good motive of the man asserting it or the bad motive of the man denying it. It would be a curious injunction which should restrain a certain act, or not, according to the intention of the defendant in doing the act. And, therefore, as we have seen, in Burgess v. Burgess, Holloway v. Holloway, James v. James, Fullwood v. Fullwood, and the other eases of their class cited, where the purpose of the defendant to avail himself of the trade reputation of the plaintiff was clearly manifested by the fraudulent devices with which he accompanied the use of his name, the use of the name was, in no instance, enjoined; although in every case the accompanying devices were enjoined. The inconvenience that may result from the common use of a name to which each party has equal right is damnum absque injurid.

*146Third.—The plaintiff’s conduct disentitles it to the relief ashed. The very principle which it invokes against the defendants is fatal to its own case. It is itself sailing under false colors. Its corporate name was taken and the record and even the complaint itself shows, that its stamp is and has been used for the purpose of inducing the public to believe that its goods are made by “ the genuine and original Rogers brothers,” that is, by William, Asa and Simeon Rogers, who carried on the manufacture of similar goods at Hartford as the copartnership of Rogers Brothers from 1847 to 1853, and by whose personal efforts the original “Rogers” reputation was created, but who are all long since dead. The record shows that the plaintiff is now falsely holding itself out as carrying on a business which was thus established by these brothers at Hartford in 1847, and by them thereafter removed to the plaintiff’s present factory in Waterbury. Equity will never enjoin a trademark that tells the truth. Nor will it protect a trade-mark that tells an untruth. The defendants’ mark tells the truth. The plaintiff’s mark tells an untruth. The plaintiff thus “places itself beyond the pale of the protection of the law.” Upton on Trade-marks, p. 30. Nor would the plaintiff’s case be aided if the original Rogers brothers had ever attempted to confer upon the plaintiff the right to thus hold themselves out to the public. “ The privilege of deceiving the public, even for their own benefit, is not a legitimate subject of commerce.” Partridge v. Menck, 1 How. Court of App. Cases, 558, and Cox’s Trade-mark Cases, 72. And since the Leather Cloth Company Case, 11 H. L. Cases, 523, this principle has been firmly imbedded in the law of trade-marks. It has received recent recognition by. the Supreme Court of the United States in Manhattan Medicine Co. v. Wood, 108 U. S. Reps., 218.