People v. Zimbrolt

35 Cal.App.2d Supp. 745 (1939) THE PEOPLE, Respondent,

v.

SOL ZIMBROLT, Appellant.

California Court of Appeals.

May 25, 1939. Orloff & Katz for Appellant.

Ray L. Chesebro, City Attorney, W. Jos. McFarland, Assistant City Attorney, and Marvin Chesebro, Deputy City Attorney, for Respondent.

Bishop, J.

The facts in this case are not in dispute, but the interpretation to be placed upon the provisions of section 354, Penal Code, under which appellant was charged, convicted and sentenced, is in dispute. Because we are of the opinion that the undisputed facts fail to show that the appellant violated any provision of the section, when construed as it should be, we have concluded that the judgment must be reversed.

The section, which has not been the subject of any reported decision, has read as follows since the year 1897: "Every person who has in his possession, or who uses any cask, bottle, vessel, case, cover, label, brand, or other thing bearing, or having in any way connected with it the trademark of another, which has been duly recorded in the office of the secretary of state, or with the commissioner of patents in the United States patent-office, or the trade name of another, for the purpose of disposing of any article, other than that which such cask, bottle, vessel, case, cover, label, brand, or other thing originally contained, or is connected with by the owner of such trade-mark or trade name, with intent to deceive or defraud, is guilty of a misdemeanor"

[1] In proof of the charge that the defendant had twice offended against the section, the People proved and now rely upon these facts. The defendant had in his possession a number of labels bearing a very close resemblance to those authentically used by the makers of Bacardi rum and also a number much like those rightfully used by the makers of The Old Smuggler whiskey. The genuine labels, both of the rum and of the whiskey, bore, and those possessed by the defendant appeared to bear, the trade-marks of the respective makers which trade-marks had been registered (recorded) with the commissioner of patents in the United States patent office. The defendant sold the labels, both for the Bacardi rum and The Old Smuggler whiskey, to one whom he believed to be a bootlegger desiring to obtain some counterfeit labels to further the sale of his home-made products. With the [35 Cal.App.2d Supp. 747] labels, the defendant sold some corks and other trimmings to make the bootlegger's rum and whiskey pass more readily as Bacardi and The Old Smuggler.