The refilling of bottles is a specific offence, covered by statutes in some of the states. It is needless to say that it is extremely difficult to obtain evidence of refilling that will convict.
In the case of the People v Luhrs (195 N. Y., 377), in which the defendant Luhrs was charged with having refilled a Wilson Whiskey bottle, he put in the unusual defence that although he refilled a Wilson Whiskey bottle, he refilled it with Wilson Whiskey. But the New York penal code states that it is unlawful to sell any goods which are represented to be the manufacture of any other party than the seller, unless such goods "are contained, in the original packages, and under the labels, marks or names pasted thereon by the manufacturer."
The defendant contended that this law was unconstitutional, because it prevented him from selling his legitimate property in any way he chose to sell it, and thus deprived him of his property without due process of law. The court did not accept this contention, as the defendant obviously had the right to sell Wilson Whiskey any way he might desire, and at any price, on the condition that he did not sell it in a trade-marked package that had contained other goods. The trade-mark certifies both to the manufacture and the packing of contents. By refilling bottles, even with the same kind of goods, the dealer makes a false representation, as the bottle would not contain, after refilling, what was originally put in it.
Infringement by Foreigners Through Importation
Manufacturers are protected against infringement by foreigners sending goods bearing infringing trade-marks and labels to the United States by Section 27 of the Act of 1905, which is as follows:
"That no article of imported merchandise which shall copy or simulate the name of any domestic manufacture, or manufacturer or trader, or of any manufacturer or trader located in any foreign country which, by treaty, convention, or law affords similar privileges to citizens of the United States, or which shall copy or simulate a trade-mark registered in accordance with the provisions of this act, or shall bear a name or mark calculated to induce the public to believe that the article is manufactured in the United States, or that it is manufactured in any foreign country or locality other than the country or locality in which it is in fact manufactured, shall be admitted to entry at any custom-house of the United States; and, in order to aid the officers of the customs in enforcing this prohibition, any domestic manufacturer or trader, and any foreign manufacturer or trader, who is entitled under the provisions of a treaty, convention, declaration, or agreement, between the United States and any foreign country to the advantages afforded by law to citizens of the United States in respect to trade-marks and commercial names, may require his name and residence, and the name of the locality in which his goods are manufactured, and a copy of the certificate of registration of his trade-mark, issued in accordance with the provisions of this act, to be recorded in books which shall be kept for this purpose in the Department of the Treasury, under such regulations as the Secretary of the Treasury shall prescribe, and may furnish to the Department facsimiles of his name, the name of the locality in which his goods are manufactured, or of his registered trade-mark; and thereupon the Secretary of the Treasury shall cause one or more copies of the same to be transmitted to each collector or other proper officer of customs."
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