It is a settled principle of law that a complainant must appear in a court of equity with clean hands. In other words, an essential misrepresentation of a complainant's goods, by means of his trade-mark, or on his labels, or through advertisements, is a bar against his action for relief from infringement.
One Flavel made and sold a stove under the name "Flavel's Patent Kitchener." The defendant, Harrison, began to make and sell another stove under the same name. Flavel sued to enjoin Harrison, but an injunction was denied when it was shown that Flavel's stove was not patented, although its name would lead one to believe that it was made under a patent.
In another case, the makers of a toilet preparation known as "The Balm of a Thousand Flowers" brought suit to enjoin another party from selling a similar preparation under the name of "The Balm of Ten Thousand Flowers." The complainant's motion to enjoin was denied, when it was shown in court that his "Balm of a Thousand Flowers" did not contain the balm of any flower whatsoever—in fact, was not a balm at all, but a soap—and that its chief ingredients were oil and alcohol. It was held that the trade-mark was deceitful and complainant's motion was denied. Fetridge v Wells (4 A 66 Pr. 144; B. How. Pr. 385).
The infringement of trade-names and trade-marks in most classes of merchandise is relatively infrequent compared with the extensive substitution, infringement and counterfeiting that are continually going on in the liquor, wine, cigar and allied trades.
This had become an evil of such formidable proportions that in 1904 an organization under the title of the Trade-Mark Protective Company was formed to run down and prosecute offenders. The clients of this company are mostly importers and producers of whiskies, wines, olive oils, cordials, cigarettes and cigars. The company has a staff of skilled detectives, who are always at work looking for imitators and counterfeiters of the goods of the company's clients. After securing evidence of an infringement the company undertakes the prosecution of the offenders.
The methods of the Trade-Mark Protective Company in prosecuting infringers and counterfeiters are of the kind that inspire evil-doers with terror as well as respect.
In many cases the bottles, or packages, and labels—including trade-marks—have been counterfeited so perfectly, and in such detail, that expert bottle-makers and lithographers were required as witnesses to show the difference between the spurious and the genuine.
An account of a few of the cases prosecuted by the Trade-Mark Protective Company are given here for the purpose of showing the methods of this class of dealers in spurious goods.
One Young, doing business as the "Cincinnati Distilling Company" was found using counterfeits of the labels of the Wilson Distilling Company. He was tried, convicted, and sentenced to six months in the workhouse and to pay a fine of $300.
A cigar dealer, when asked by customers for the well-known "Romeo and Juliet" cigar, which bears a label reading "Romeo y Julieta", sold an imitation bearing a label on which the words "Romeo, el Amante de Julietta" appeared—the words "Romeo" and "Julietta" being in large type. The cigars bearing this label were seized, and the dealer was restrained from selling any "Romeo and Juliet" cigar which did not bear the genuine label.