Pierce v. Guittard

Ross, J. — The complaint alleges that the plaintiff for more than thirteen years next preceding the commencement of this action has been, and still is, engaged in the manufacture and sale of a chocolate called and known as “German Sweet Chocolate,” — “the name of German being that of one Samuel German, who was on and before the 19th of June, 1867, employed, and who has ever since been and is now employed, by plaintiff in the manufacture of the said chocolate, and who on said 19th of June, 1867, for a valuable consideration, duly assigned and transferred to the plaintiff the exclusive right to use his, the said German’s, name upon the said chocolate so as aforesaid made and manufactured, and upon the labels and cases containing the same, and generally to use the said name of German as a trade-mark therefor”; that the chocolate has long been well and favorably known in the trade and to the public generally by the name of “German Sweet Chocolate,” and has been and is now [69]extensively sold under that name, and now is and for a long time has been the source of large profits to the plaintiff; that during the time mentioned it had been and still is put up by the plaintiff in the form of a cake of about five inches in length and two and one half inches in width, each cake inclosed in a wrapper and label, which has on a gilt background a green panel with arabesque border, in the center of which is a white star surrounded by the words “German Sweet Chocolate”; that the said wrapper and label with the said words and figures thereon were appropriated by plaintiff to his exclusive use as a trade-marlc to designate the origin and ownership of said “ German Sweet Chocolate,” and has been such ever since; that the defendants for more than four years last past have been and still are manufacturing and selling an inferior article of chocolate in the form of a cake similar in shape to the “German Sweet Chocolate” of the plaintiff, put up in wrappers and labels of about the same size and shape as the plaintiff's, and bearing the words “ Sweet German Chocolate” in a green panel on a yellow or gilt background, with arabesque pattern; that the wrappers and labels of the defendants are fraudulent imitations of those of the plaintiff, and were and are calculated and intended by the defendants, and each of them, to deceive dealers and purchasers, and to mislead them into using their inferior article, instead of and as and for the chocolate manufactured by the plaintiff, and has had and continues to have that effect to the serious injury of the plaintiff. And the plaintiff prays a decree restraining defendants from making, or causing to be made, or in any manner using wrappers or labels having upon them the words “ Sweet German Chocolate,” or any words, figures, or designs resembling or imitating the words, figures, and designs used by the plaintiff as his trade-mark, and also for an accounting of profits alleged to have been made by defendants out of the alleged fraudulent sales, and for damages.