Opinion of the Court. other. That the plaintiff itself did not consider that Lincoln & Co. were infringing upon its rights is evident from the correspondence between them in the summer of 1882. From this correspondence it appears that Lincoln & Co. were dealing with the plaintiff, which wrote them under date of August 21, 1882: "We notice you are manufacturing a Brown's Iron Tonic. Is this a new medicine? If so, are you not trespassing upon our rights, etc.?" To this Lincoln & Co. replied, saying that they had begun the manufacture of the Iron Tonic since the admission of Mr. E. L. Brown into their firm, in May, 1881, enclosing them a bottle of the preparation, and assuring them that they had no desire to make money upon their good reputation, and had never attempted to sell their tonic as that of the plaintiff. To this the plaintiff replied as follows: "BALTIMORE, MD., August 28, 1882. "Messrs. C. J. LINCOLN & Co., Little Rock, Ark. "GENTLEMEN: Enclosing your invoice, thank you for your kind and satisfactory letter. We wish the Brown's Iron Tonic a success, as, upon examination, we cannot see where it conflicts with us except in the multiplicity of the Brown family. Your friends, "BROWN CHEMICAL COMPANY." Indeed, the controversy between these parties seems to have arisen some months afterward, through a trade circular issued by Lincoln & Co., in the autumn of 1882, in which they called attention to the distinction between the bitters and the tonic as rival remedies, and offered the latter at a lower price, at the same time recommending it as a superior remedy. While of course the plaintiff is not estopped by this letter to claim an infringement of its rights, it tends very strongly to show that the persons who were most actively interested in putting an end to this alleged fraud were satisfied in their own minds that no fraud was intended. The testimony is particularly cogent in view of the fact that suit was not begun until nearly four years after the letter was written. Opinion of the Court. The right of the plaintiff to maintain this bill then must rest upon the assumption that the words "Brown's Iron Tonic" bear such a resemblance in sound and appearance to the words "Brown's Iron Bitters" that the public are liable to be misled. But if the words "Iron Bitters" cannot be lawfully appropriated as a trade mark, it is difficult to see upon what theory a person making use of these or similar words. can be enjoined. We understand it to be conceded that these words do not in themselves constitute a trade mark; it follows then that another person has the right to use them, unless he uses them in such connection with other words or devices as to operate as a deception upon the public. If the defendants be liable at all, then it must be by the addition of the patronymic "Brown" to the words "Iron Tonic." But the evidence shows that the preparation was originally compounded by a person of that name of whom the present manufacturers are the successors in business, and, in the absence of testimony tending to show an intention to palm off their preparation as that of the plaintiff, they have a right to such use. It is claimed, however, that, even conceding Brown's right to use his own name as connected with the manufacture of the Iron Tonic, he could not transfer such right to a person of different name, and thereby authorize the latter to make use of it. Whatever may have been the respective rights of Brown and Lincoln to this name, the plaintiff does not stand in a position to question the right of Brown to transfer his interest in the business, and to include in such transfer the right to the use of his name in connection with the preparation of the tonic, as part of the good will of the business. In the case of Kidd v. Johnson, 100 U. S. 617, 620, it was held that the owner of a trade mark which is affixed to articles manufactured at his establishment may, in selling the latter, lawfully transfer to the purchaser the right to use the trade mark, and, in delivering the opinion of the court, Mr. Justice Field observed: "But when the trade mark is affixed to articles manufactured at a particular establishment, and acquires a special reputation in connection with the place of manufacture, and that establishment is transferred, either by contract or operation of law, Counsel for Petitioners. to others, the right to the use of the trade mark may be lawfully transferred with it. Its subsequent use by the person to whom the establishment is transferred, is considered as only indicating that the goods to which it is affixed are manufactured at the same place and are of the same character as those to which the mark was attached by its original designer." So in Menendez v. Holt, 128 U. S. 514, it was held that when a partner retires from a firm, assenting to, or acquiescing in the retention by the other partners of the old place of business, and the future conduct of the business by them under the old name, the good will remains with the latter, as of course, and that, under such circumstances, the right to use a trade mark passes to the remaining partners as a part of such good will. There are a few cases indicating that the mere right to use a name is not assignable, notably Chadwick v. Covell, 151 Mass. 190, but none that it may not be assigned to an outgoing partner or to a successor in business as an incident to its good will. Ainsworth v. Walmesley, L. R. 1 Eq. 518; Derringer v. Plate, 29 California, 292. There was no error in the decree of the court below, and it is therefore Affirmed. In re INGALLS, Petitioner. ORIGINAL. No number. Submitted March 16, 1891.- Decided March 23, 1891. No application to this court for a writ of error will be entertained, except when a Justice of this Court, upon consideration of the record, has deemed it proper, under special circumstances, to endorse thereon a request that counsel be permitted to proceed in that way. THE case is stated in the opinion. Mr. de Lagnel Berier for petitioners submitted on his brief. Mr. Edward D. McCarthy also filed a brief for petitioners. Opinion of the Court. Mr. George W. Van Slyck for Elizabeth A. L. Hyatt, opposing. PER CURIAM. This is an application for a writ of error made to the court in session, under the apprehension on the part of counsel that it was directed to be so presented. We have, therefore, considered it, with the result that the writ must be denied. Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46; Walter A. Wood Co. v. Skinner, ante, 293. We wish it to be distinctly understood that in future no such application will be entertained, except when a Justice of this Court, upon consideration of the record, has deemed it proper under special circumstances to endorse thereon a request that counsel be permitted to proceed in that way. Writ refused. FOWLER v. HAMILL. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 4. Argued and submitted March 31, 1891.- Decided April 13, 1891. A decree dismissing the bill was entered April 21, 1883. Judgment for costs was rendered June 16, 1883. The appeal was allowed June 16, 1885, on an application made June 15, 1885. Held, that the decree of April 21 was the final decree; but that, even if the judgment of June 16 was the final decree, the allowance was too late to enable this court to take jurisdiction. THE case is stated in the opinion. Mr. J. E. Hindon Hyde for appellant. Mr. Frederic II. Betts was on the brief. Mr. Howard A. Sperry for appellee submitted on his brief. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Fowler, deceased, claimed as having by assignment become the owner of all the interest of one McClosky in the subject. Opinion of the Court. matter of this suit, and in certain letters patent, in respect to which the bill herein was filed by McClosky against Hamill. A decree dismissing the bill was entered in the Circuit Court on April 21, 1883. Judgment for costs was rendered June 16, 1883. The record does not show the judgment of June 16, but the petition for appeal states that "on the 21st day of April, 1883, a decree was made in said suit and duly entered, whereby it was ordered, adjudged and decreed that the said bill of complaint be dismissed, and that the said McClosky pay to the above-named respondent the costs of said suit, to be taxed, and thereupon the said costs were taxed; and on the 16th day of June, 1883, the final decree was entered in said cause, including judgment for the amount of said costs as taxed, and execution was duly issued for said costs, etc." The application for the allowance of an appeal was dated June 15, and the appeal allowed June 16, 1885. The citation was signed June 16 and the appeal bond executed June 17, 1885. The petition for and allowance of appeal and the citation were filed in the Circuit Court June 19, and the appeal bond June 17, 1885. The final decree was that of April 21, 1883, and the appeal was not taken in time. Rev. Stat. § 1008; Silsby v. Foote, 20 How. 290. And had the judgment for costs of June 16, 1883, been the final decree, still the result must be the same, as the papers on appeal were not filed in the Circuit Court within two years thereafter. Credit Co. v. Arkansas Cent. Railway Co., 128 U. S. 258. The appeal must therefore be Dismissed. |