
    Hohner v. Gratz.
    
      (Circuit Court, S. D. New York.
    
    November 29, 1892.)
    Trade Name—Iffringement.
    Mathias Hohner is a well-known maker of harmonicas in Wurtemberg, most of which are sold under his name in this country. He makes no particular style, but his workmanship is good. Ernest Leiterd made harmonicas in Saxony, and put upon them his own name, partly in monogram, with the word “nach” and the words “Improved Hohner” in larger and plainer letters, and sold them in this country through an agent. Held, that Hohner’s right to the use of his own name was infringed, and he was entitled to an injunction and accounting.
    In Equity. Bill by Mathias Hohner against William R. Gratz for infringement of a trade name. On final hearing. A motion for leave to file a supplemental answer setting up a foreign judgment was heretofore denied. See 50 Fed. Rep. 369. Decree for complainant.
    
      Louis C. Raegener, for orator.
    
      Benno Loewy, for defendant.
   Wheeler, District Judge.

The orator is a well-known maker of harmonicas in Wurtemberg, most of which are sold under his name in this country. Ernest Leiterd is a maker of harmonicas in Saxony, for whom, in the sale of which, the defendant is agent in this country. Leiterd has made harmonicas, and put upon them "the word “nach” with the words “Improved Hohner” in larger letters, prominently, besides his own name, partly in monogram, and less plain, which have been and are being sold through the defendant in this country. This bill is brought to restrain such use of the orator’s name, and for other relief. The orator does not appear to have made or sold any particular style of these instruments to which his name has been applied, but his workmanship appears to have been good, and his name has generally been used upon those of his own manufacture. He has made no improvements but in quality, and the words “Improved Hohner” would signify his make of better quality.

The defendant Leiterd has no occasion to use the orator’s name to distinguish any form of instrument, or for any purpose but to express his workmanship. The use of the word “nach” would not show that the instruments were not his make; neither would the name of Leiterd show that they were of his make. This use of the orator’s name tends directly to show that Leiterd’s instruments are of the orator’s make. Many cases justify the use of others’ names to show kinds and styles, but none of them go so far as this. Fairbanks v. Jacobus, 14 Blatchf. 337; Wilcox Machine Co. v. Frame, 17 Fed. Rep. 623; Leclanche Battery Co. v. Western Electric Co., 23 Fed. Rep. 276; Goodyear’s India Rubber Glove Manuf’g Co. v. Goodyear Rubber Co., 128 U. S. 598, 9 Sup. Ct. Rep. 166. The orator has the right to use his own name on his own wares. The defendant has shown no right to use the orator’s name on Leiterd’s wares. Let there be a decree for an injunction against this use of the orator’s name, and for an account, with costs.  