Shaefer v. Korbel

By the COURT. The trademarks alleged in the complaint to have been infringed are twenty in number, to wit: Mechanic’s Own, Tony, Chromo, Fruit, Oregon, Green Seal, Grape, Eclipse, Bon Ton, Slug, Beauty, Don Juan, Victoria, Columbus, Imperial, Give Us a Light, Private Cuvee, Little Devil, Red Seal, and Star and Garter, each of which it is alleged plaintiff had appropriated and continuously used on cigar boxes to designate the origin and ownership of the. said cigar boxes, and each of which, it is further alleged, the defendants have used, in violation of plaintiff’s right.

The complaint was demurred to and the demurrer sustained on the sole ground that it did not constitute facts sufficient to constitute a cause of action. Unless all of these trademarks relate only to the name, quality or description of the plaintiff’s cigar boxes, or the place where they are produced, or the business carried on, the demurrer should have been overruled: Civ. Code, 991.

We do not think that any of them “relates only to the name, quality, or description of thing or business, or the place where the thing is produced or business carried on.”

Judgment reversed, with directions to the court below to overrule the demurrer, with leave to the defendants to answer within ten days thereafter.