Henry Billings Brown

“ We are of opinion, however, that as defendant's bottle and label are a clear infringement upon those of the plaintiff, it would be destructive to her just rights to permit the use of such bottles and labels by the defendant, notwithstanding the affixing of the Seal brand, which is a mere private mark of the importer. The injury to her is in the simulation of her bottle and label, and she has the right to require that her competitors shall be forced to adopt a style of bottle which no one with the exercise of ordinary care can mistake for hers. ”

“ While the proprietors of the 'Hunyadi Matyas' water undoubtedly found a justification for their use of the word 'Hunyadi' in the decision of the minister of agriculture of 1873, that decision did not cover the use of the simulated label, the adoption of which seems to have been an act of undisguised piracy.
Practically, the only defenses pressed upon our attention are those of abandonment and laches.
1. To establish the defense of abandonment it is necessary to show not only acts indicating a practical abandonment, but an actual intent to abandon. ”

“ A moment's comparison of the two labels will show that, while the printed matter upon each is different from that upon the other, their general resemblance is such as would be likely to mislead the public into the purchasing of one for the other. ”

“ As already stated, Saxlehner, when he began selling his water, adopted not only the name 'Hunyadi Janos,' but a straight bottle with a short neck, to the top of which was attached a metal capsulewith an inscription, as well as a peculiar label, covering almost the whole body of the bottle, divided into three rectangular panels of red and white, which at the time of his contract with the Apollinaris Company was changed to red and blue, so far as it applied to waters sold to that company for the American market. ”

“ The infringers were making use of their trademarks under licenses from the Hungarian government, and we see no reason to doubt that they were proceeding in good faith to dispose of their waters under the trademarks registered in Hungary. Under these circumstances, if Saxlehner had intended to assert his rights, under the laws of this country, to the exclusive use of the word 'Hunyadi,' he was bound to act with reasonable promptness. It is true that he may have supposed the Apollinaris Company would assert his rights in that particular for their own benefit ”

“ There is nothing in these facts tending to show an abandonment by Saxlehner or the plaintiff of their rights either in the name of Hunyadi or in the labels, unless it be the fact that the trademark registered in the United States in 1887 contained the words 'Hunyadi Janos,' which, it is insisted, was a waiver of a right thereafter to register the name 'Hunyadi' alone. ”