
    THE CONGRESS AND EMPIRE SPRING CO. against THE HIGH ROCK CONGRESS SPRING CO.
    
      Court of Appeals;
    
    
      April, 1871.
    Injunction.—Trademarks.—Complaint.
    An injunction lies at the suit of the owner of a peculiar product of nature, to protect him in the exclusive use of a name belonging to it alone, and properly employed by him as his trademark in its sale.
    
    In the law of trademarks there is no distinction between artificial products and those which are natural and spontaneous. Where a spring having peculiar medicinal and curative properties, had been known as “ The Congress Spring ” for more than seventy years, and that name had never been applied to any other spring or any other water, and no other spring possessed the same qualities;—Held, that the words “ Congress Water ” and “ Congress Spring Water,” appropriately indicated the origin of the water flowing from the spring in question; and that the: proprietors of the spring had an exclusive right to the use of the word “ Congress ” as their trademark, in connection with the sale of such water.
    A sale of the spring carries to the purchaser the right to use the trademark; and in an action by the purchaser to enjoin third persons from infringing, the complaint need not allege any express assignment of the trademark.
    Form of a complaint appropriate to such a case.
    Appeal from a judgment of the general term affirming a judgment entered on a report of a referee dismissing the complaint.
    The complaint which was dismissed by the referee as not stating a sufficient cause of action, was as follows.
    The plaintiffs, after alleging their incorporation, stated that about August 5,1865, they became the owners of certain real estate in the village of Saratoga Springs upon which exists a mineral spring, discovered about 1792, and which was immediately or shortly thereafter named the Congress Spring, and which has ever since continued to be so designated ; that its waters were found to be peculiar to itself, and possessed of highly medicinal and curative qualities. That of the numerous other mineral springs at Saratoga, none possess the peculiar curative properties of the Congress Spring, and none except the said spring were ever called by the name of the Congress Spring, or the waters thereof called Congress water ; that it was early ascertained that the waters of the spring, when bottled, retained their curative qualities for an indefinite period, and that, as early as 1825, the proprietors of Congress Spring had commenced the business of putting up the waters thereof in bottles, and selling the same as Congress water ; and that from that time to the present, the business thus established has continued to be prosecuted by the proprietors of the spring for the time being, until rhe business has become a very extensive one, and the water of the spring, under the name of Congress water, has become an extensive article of commerce in many countries. That during all this time, the proprietors of the said spring, for the time being, have used in reference to it and its waters, exclusive of all other persons, the names of Congress Spring and Congress Spring Water, until the acts complained of on the part of the defendant.
    That from some time prior to 1825, to his death in 1846, John Clarke owned the spring, and part of the time alone, and part of the time in connection with one Lynch, carried on the business of putting up and selling the said Congress water ; that upon the death of John Clarke, the business was continued by his devisees, who became the owners of the spring, under the style of Clarke & Co., until 1852, when one White purchased a part of the said Congress Spring, and the business was conducted in the firm, name of Clarke & White, until the spring was sold to the plaintiffs in 1865, who have since continued the business.
    
      That from 1825 down, Clarke and his successors in the business had used the words “Congress Water” to denote the waters put up and sold by them, and that these words, followed by the names or initials of the proprietors for the time being, were printed on the inner side of the corks used in bottling the water, and the names of the proprietors were also impressed upon the bottles.
    That in carrying on the business of putting up and selling the said water, all the proprietors of the said Congress Spring have been in the habit of purchasing empty bottles which have been used by former pro - prietors in selling the Congress water, so that each of the successive proprietors of the spring for the time being has used bottles having the proprietory marks of former owners.
    The complaint further stated, that the proprietors of the spring have been in the habit of putting up the bottles containing the water in boxes on which were marked with stencil plate on the top, the words, “ Congress Water,” with the names of the proprietors for the time being, and on the end of each box a notice that corks of all bottles containing the genuine water were branded with the words “ Congress Water.”
    [These marks or labels were set forth in the complaint in the form used by successive proprietors.]
    . That the plaintiffs invested a large capital in the purchase of the Congress Spring property, and the necessary warehouses and apparatus for bottling the water and preparing it for market, and the business was prosperous and remunerative up to the time of the alleged wrongs on the part of the defendant.
    That within a few months, certain parties organized the defendant’s corporation, and the defendant, under the name of “High Rock Congress Spring Company has, since its organization, commenced the preparation for sale, of a medicinal water intended to resemble the Congress water, and the sale thereof as Congress water ; that it has prepared a very large quantity thereof, and put up the same in bottles for sale, with marks and inscriptions thereon intended to deceive the public, and to induce the belief that the bottles of water so prepared and sold by it are waters of the said Congress Spring, and thereby to sell the same as Congress water ; that it has opened an office for the sale of the same in the city of New York, under the charge of one Thomas J. Clark as its agent, where it is selling the same to persons who wish to purchase Congress water, as the original Congress water from the Congress Spring aforesaid ; that among the other devices fraudulently contrived by it, thus to deceive the public, it assumed the corporate name of High Rock Congress Spring Company ; uses bottles for putting up the water prepared by it, of a form similar to those” used by the proprietors of Congress Spring, with the words “High Rock Congress Spring Water” impressed thereon: that these words are also printed on the corks, and that like inscriptions are made with stencil plates on the tops and ends of the boxes containing the bottles.
    [These marks were set forth in the complaint in the form used.]
    That the defendant has prepared a very large quantity of the said mineral water for sale in the manner aforesaid, and by means of the said fraudulent devices, is now imposing upon the public large quantities of a simulated and spurious mineral water prepared by themselves, as the true waters of the Congress Spring, and thereby causing an interference with the sale of the true waters of the Congress Spring by the plaintiff, and depriving it of its just gains on the sale thereof, which, but for the defendant’s acts aforesaid, the plaintiff would realize therefrom.
    
      Pac similes of the inscriptions used on the corks, bottles, and bóxes, in the sale of the genuine and the spurious Congress water respectively, were also annexed to the complaint, and referred to as exhibits.
    The plaintiff thereupon demanded judgment that the defendant be restrained from using any name containing the words Congress Spring Company in the business of preparing, manufacturing, or putting up mijteral water for sale; also from using on any bottles, corks, boxes, &c., containing mineral water, prepared or manufactured by the defendant, the words Congress water, or Congress Spring water, either alone or in connection with other words, or any symbol by which in any manner purchasers might be deceived into the supposition that the same was Congress water, and induced to purchase the same as Congress water ; also from counterfeiting, or in any manner simulating or imitating any devices hitherto used by the proprietor for the time being, upon the bottles, &c>, used in preparing Congress water for market, and from using the same, and from designating the water so prepared or manufactured, ‘ ‘ Congress Water, ” or “ Congress Spring Water, ’ ’ either alone or in connection with other words.
    That the defendants be compelled to account to the plaintiff for all the mineral water put up aud sold by them in violation of the plaintiff’s right, and be adjudged to pay the same.
    An ex-parte injunction was obtained by the plaintiffs, and served with the summons and complaint. A ■motion to dissolve the injunction, based on the complaint, answer, and affidavits, was heard at special term and granted ; .and on appeal from the order it was affirmed by the general term (57 Barb., 526).
    The opinion at special term took the ground that equity will not exercise its power to restrain the use of a trademark, the exclusive right to which is claimed by the plaintiff, unless a good legal title thereto is alleged in the complaint, and the court can see from the plaintiff’s own showing that the right which he seeks to have protected clearly belongs to him, and has been infringed. Nor will the court interfere by injunction when such title is alleged, if the right is denied by the defendant, or is rendered doubtful. That the plaintiff did not allege that it had purchased the right to use such trademark, or that the right was assigned to it, and that it could not be inferred from the fact that the plaintiff had purchased the spring that it had also acquired the right to use the trademark. That the word “Congress” indicated neither origin nor ownership, but from long use had come to be merely descriptive of the water.
    The order of the special term was affirmed on the last mentioned ground, that the word “ Congress ” indicated neither origin nor ownership, nor place of the water, but only designated its name, and from long use, its quality—and also on the ground that the water of the Congress Spring being a product of nature, the law of trademarks had no application to protect,the owner in the exclusive use of a name given to it.
    
      J. K. Porter and Joseph A. Shoudy, for the appellants.
    I. The water of Congress Spring is a well known article of merchandise, and has been for more than forty years sold by successive proprietors under the recognized designation and trademark of “ Congress Spring Water ” and “ Congress Water.”
    
    II. The court below conceded that the plaintiff, as owner of the spring and proprietor of the water, w§.s entitled to use those words as applicable to the particular article of merchandise in which he dealt, but heldithadno exclusive right thereto (see 57 Barb., 526).
    III. The court erred in holding that the law makes any distinction between dealers in manufactured articles and those dealing in products of nature. (1.) It is not claimed that there is any authority for such a distinction (see opinion below). The principles of the law of trademarks furnish no ground for such a distinction. (2.) So far as they rest on the ground of protection of dealers. (3.) Or on the wrongful and injurious character of the act. (4.) Nor so far as they rest on the ground of the protection of the community. (5.) No such distinction is recognized in the statute of New York, making it a misdemeanor to imitate the stamp, brand, or trademark usually affixed to the goods, wares, merchandise or preparation, of any ‘ ‘ mechanic, manufacturer, merchant, or tradesman,” with intent to deceive, &c. (Laws of 1862, ch. 306, p. 513, 3 Edm. Stat., 672). (6.) None such is recognized in the act of Congress on the subject, which extends to every class of lawful merchandise (15 U. S. Stat. at L., 210, ch. 230; Acts of 1870, § 77). (7.) If this distinction be sustained, the preparation of the waters by bottling would clearly bring it within the law. (8.) The court below erred in supposing that at common law, the law of trademarks extended only to artificial productions. (9.) In the Plumbago case, where the plaintiff put up native plumbago in cubical blocks, an injunction to restrain the use of his trademark was allowed (Dixon Crucible Co. v. Guggenheim, 2 Brewster (Penn.), 335). To the same effect as to trademarks on native plumbago, see cases there cited (p. 341) Dixon v. Cozzens (Albany, 1860); Dixon v. Dixon (N. Y., 1860); Dixon v. Wondra (Boston, Dec., 1862). (10.) So Professor Parsohs says, in an article on trademarks, “ The rule appears to be extended to all kinds of property, held by the owner for the use of the public, with compensation to him, and in which there can exist a peculiar and personal right of appropriation” (15 New Am. Cyclopedia, 568). To the same effect, see London Jurist, 1850, Part 2, 223. (11.) So, too, in the Guinea Coal case, decided in 1870, where the article in which the respective companies dealt was a product of nature, an injunction was granted (Lee v. Haley, 39 Law Jour. Ch., 284, 287: S. C., 
      Law Rep., 5 Ch. App., 155). (12.) So, too, in the Liquorice case, where the article of merchandise was the natural gum of an Asiatic root, the trademark was protected by injunction in the English court of chancery (McAndrew v. Bassett, 10 Jur. N. S., 550). (13.) “ Sweet Oppoponax of Mexico,” as applied to the product of a Mexican flower, was held a good trademark in Smith v. Woodruff, 48 Barb., 438. (14.) Burnt clay is as much a product of nature as bottled mineral water, and in the Brick case it was held to be within the law of trademarks (Dixon v. Fawcus, 3 Ellis & E., 537; S. C., 107 E. C. L., 535). (15.) This case is within the terms of the statute forbidding the imitation of trademarks (Laws of 1863, ch. 209, p. 355).
    IV. The court below erred in holding that the trademark was not entitled to protection “because the word Congress” (as applied to the spring and water) “neither indicates the origin, ownership, nor place of the water, but only designates its name, and, from long use, its quality.” 1. The court was wrong in view of the undisputed facts: (1.) When the proprietors of the spring commenced the business of bottling the water, and used the word “ Congress” as a trademark, the spring had been known by that name for thirty-three years. (2.) None of the other mineral springs at Sara-toga possessed the peculiar properties of the Congress Spring, nor were they ever known by that name. (3.) The plaintiff’s trademark accurately denotes the origin of the water. 2. The court erred in view of well settled principles of law: (1.) The words Congress Spring and Congress Water denote the origin of the waters so marked as clearly as the word Coooine denotes the origin of a preparation made from the cocoa nut (Burnett v. Phalon, 9 Bosw., 192; S. C., 3 Keyes, 594; 5 Abb. Pr. N. S., 212). (2.) And in the Liquorice Oase (1864), cited supra, the word ‘ ‘ Anatolia,” being the geographical designation of a whole country, was held to be a good trademark, where it was stamped on a stick of liquorice produced there. (3.) To the same effect are Seixo v. Provezende, 1 Ch. App., 192 ; S. C., 12 Jur. N. S., 215 ; 14 Law Times N. S., 314. 3. The cases cited by the respondent fail to establish any right. Wolfe v. Goulard (18 How. Pr., 64) merely decides that the plaintiff could not, in 1848, appropriate the designation “Schiedam Schnapps,” such designation having been in common use, as applied to Holland gin, long anterior to 1848. Burgess v. Burgess (17 E. L. & C., 257) merely decides that the popular use and signification of terms cannot be appropriated. Amoskeag Co. v. Spear (2 Sandf., 599), when considered as a whole, is against the defendant, and the passing remark of Judge Dtjer has no application to this case. Stokes v. Landgraff (17 Barb., 608) merely decides that words descriptive of quality cannot be monopolized. Fetridge v. Wells (13 How. Pr., 385) is an authority for no more than that where a name is false and deceptive, it will not be protected. See Newman v. Alvord (49 Barb., 596, 597). Clark v. Clark (25 Barb., 76) is flat against the defendant. The only point decided in Brooklyn White Lead Co. v. Masury (25 Barb., 416) was that a corporation will be protected against a simulation of its corporate and business title. Merrimack Co. v. Gunn (4 E. D. Smith, 387) simply decides that where there is no simulation, and no attempt to deceive, an injunction will be refused. The following cases are in our favor : Carter v. Garlile, 20 Beav., 183; Glenny v. Smith, 13 Law Times, 13; Newman v. Alvord, 49 Barb., 598, 599 ; Seixo v. Provezende (cited supra); Burnett v. Phalon, 3 Keyes, 594; S. C., 5 Abb. Pr. N. S., 212.
    
      W. A. Beach, and Pond & French, for the respondents.
    I. The plaintiff has acquired no exclusive right to the use of the claimed trademark. The terms “Congress Spring” or “Congress Spring Water,” as applied to a natural element, are not applicable as trademarks. First. To constitute a private trademark, it must denote either the origin or ownership of the article to which it is affixed (Upton on Tradem., 86; Amoskeag Manuf. Co. v. Spear, 2 Sandf., 599; Fetridge v. Wells, 13 How. Pr., 385; Wolfe v. Goulard, 18 Id., 61; Burgess v. Burgess, 17 E. L. & E., 257). The marks and devices claimed by the plaintiff lack this essential quality. They are simply ‘ ‘ used to designate the article itself, and have become, by adoption and use, its proper appellation.” The words “Congress Spring” are but the name of the spring itself, and denote the place whence it issues. In this the words are similar to the terms “Avon Springs,” “Lebanon Springs,” “Sharon Springs,” and “Cheltenham Springs,” none of which denote origin or ownership. Second. Even if it be conceded that the terms used indicate origin, the plaintiff is not helped, since, the waters of Congress Spring have no peculiar qualities to distinguish it from the numerous fountains in the vicinity. The medicinal qualities of all being the same, the various titles designating them express their common nature, and become common words, which any proprietor is entitled to use (Fetridge v. Wells, 13 How. Pr., 385; Stokes v. Landgraff, 17 Barb., 608). Third. The doctrine of trademarks has never been, and cannot be, applied to the sale of spontaneous natural products of substantially the same nature. It is appropriate only to artificial productions, and is designed to protect inventors and manufacturers, and secure to them the reward of their genius and industry (Upton on Tradem., 97, 98).
    II. To justify interference by injunction, the claimed trademark must be deceptively used, so as to mislead ordinary attention (Partridge v. Menck, 2 Sandf. Ch., 622; S. C., 2 Barb. Ch., 101; 1 How. App. Cas., 547 ; Merrimack Manuf. Co v. Garner, 2 Abb. Pr., 318). Although this rule is against the current of authority in the opinion of Mr. Uptow, who conceives the true rule that an injunction will go, where the party fraudulently uses the trademark in a way to impose on the unwary, though ordinary attention would detect the deceit, —yet the rule first stated is the one in this State until the authority of the court of appeals is reversed.
    III. Plaintiff is not entitled to claim the names and marks employed by his predecessor in title. The complaint avers no assignment or purchase of them. It merely avers purchase of the spring. It says nothing of the business or good will.
    
      
       The general principle governing the exclusive use of trademarks, deducible from the authorities, may be concisely stated thus: One who produces, or deals in, articles of a particular class, or conducts a particular business, may appropriate, as a trademark, for the exclusive use of himself, and of his successors in the good will of his trade, any form, symbol or name which has not been appropriated by another, and which designates the origin or ownership of the article, or the identity of his establishment.
      But he cannot so appropriate either: 1. A common or proper name already in use and designating the thing or any of its qualities or the use for which it is destined; nor, 3. An arbitrary sign not signifying the origin or ownership; nor, 3. Can he appropriate a name already enjoyed by any other person, firm, or corporation, excepting in those cases where a proper name is adopted in connection with the designation of such articles or establishments, either as a name of fancy, or as the truthful designation of ownership. Mor, lastly, will a mark be protected if it be calculated to deceive the public.
      Of the first class of exceptions “Dessicated Codfish ” (5 Abb. Pr. N. S., 318), and “ Club House Gin ” (7 Bosw., 222), are examples. Of the second, letters such as A. C. A., upon the Amoskeag Company’s tickings. The third is illustrated by such cases as those of the rival Fabers’ pencil makers (49 Barb., 357), the “Akron Cement” (id., 588) ; The 1 ‘ Irving House ” (3 Sandf., 735); The “ Bismark Collar” (4 Abb. Pr. N. S., 410). In reference to rights of personal name, see also Bininger v. Clark (10 Abb. Pr. N. S., 264).
      By the case in the text, the right to an injunction for protection of a trademark for natural products, as well as manufactured articles, is established ; and in favor of those who become the exclusive owners of the only source thereof, and the business of dealing therein, and who thus are the only persons who can truthfully use the name.
      Upon the first point it was previously held that a dealer in manufactured articles is entitled to protection, though he be not the manufacturer (Taylor v. Carpenter, 2 Sandf. Ch., 603).
      And upon the second, that the right to use a trademark is assignable, even when the mark is a personal one, unless it be so purely personal as to import that the thing is the manufacture of a particular person (Bury v. Bedford, 10 Jur. N. S., 503 ; 33 L. J. Chan., 465; 12 
        W. R., 727; 10 L. T. N. S., 470). In such a case the use by the assignee would be deceptive; and, therefore, would not be protected (Leather Cloth Co. v. American Leather Co., 11 Jur. N. S., 513; 35 L. J. Chan., 53; 13 W. R, 873; 12 L. T. N. S., 743; 11 H. L. Cas., 523).
      
      
        ■ It will be observed that the opinion puts the plaintiffs’ right to use the trademark of their predecessors upon the fact that the plaintiffs bought the spring, and the whole property in it; and thus acquired what was the prime value of it, viz: the exclusive right to bottle and sell the water. That they thus acquired the business of the former proprietors, for, having bought and owning the spring, no one else could carry on the business. That being possessed of the sole right to sell the article to which the trademark had been attached, and no one, not even the former proprietors, being able truthfully to attach that trademark to any article, by operation of law, or by a necessary implication from a sale of the spring, the plaintiffs became possessed of the right to the use of the ancient trademark.
      The act of Congress of July 8, 1870, provides a statutory protection for registered trademarks. The following is the form for registration adopted by the Commissioner of Patents.
      
        Form of Deposit of Trademark.
      
      
        To the Commissioner of Patents :
      
      Tour petitioners, Martin Scott and' Henry Newman, partners under the firm name of Scott & Newman, residing in Peaeedale, Washington County, Rhode Island, and, engaged in the manufacture and sale of cotton sheetings at said Peaeedale, represent that they have used for ten years last past, are now using, and have the right to use, a trademark for said sheetings, of which the design shown in the annexed drawing is a true copy; which trademark has been printed in blue ink upon the outside of each piece of sheetings. They further represent that no other person, firm, or corporation, has a right to the use of said trademark, or of one substantially the same. They therefore pray that said trademark may be registered and recorded in the patent office, according to law, they having paid into the treasury of the United States the sum of twenty-five dollars, and otherwise complied with the regulations in such case made and provided.
      
        [Signatures of loth partners.]
      
        
        State of Rhode Island,
      
      
        County of Washington.
      
      }
      ss.
      Martin Scott and Henry Newman, being sworn, make oath and say that the foregoing statement by them subscribed is true in substance and in fact, as they verily believe. [Signatures.]
      
      Sworn to and subscribed before me this 15th day of July, 1870. [Signature of] Justice of the Peace.
      Five duplicate copies of the proposed trademark, in addition to the one accompanying the statement and oath of applicant, must be deposited with each application. Certified copies will be furnished at the usual rates.
      Fee on depositing a trademark for registration, twenty-five dollars.
    
   By the Court.—Folger, J.

The questions involved in this appeal are two : 1. Can the owner of a peculiar product of nature be protected in the exclusive use of a name belonging to it alone, and employed by him as his trademark in his sale thereof? 2. Does the name or trademark used in the case before us by the plaintiffs indicate the origin, ownership, or place of that product, and is it one in the exclusive use of which the plaintiffs should be protected ?

The general rules of law applicable to these questions do not seem to be controverted. All agree that a name may be used as a trademark, when it is used as indicating the true origin or ownership of the article offered for sale ; and that the owner may be protected in its exclusive use, when it is appropriated as designating the true origin or ownership of the article to which it is affixed; and when others may not use • it with equal truth, and have not an equal right to employ it for the same purpose. We do not propose to assert in this case any principle which will conflict with these rules.

The case comes before us on an appeal from a judgment sustaining the dismissal of the complaint, made upon the opening of the case for the plaintiffs, with no testimony taken on either side. In this inquiry all of its allegations are to be taken as true. One of them is, that the names “ Congress Spring” and “ Congress Water,” are, and from 1792, have been, used to designate a particular spring of water at Saratoga Springs, and the flow therefrom' possessed of very remarkable medicinal qualities peculiar to itself. Another is, that these names have never been applied to any other spring or any other water, and that no other spring nor any other water possesses these peculiar curative qualities. The full strength of these allegations is, that here is a particular article with valuable qualities of exclusive peculiarity, of which the owners of this spring possess the only source, and which can be had only from them. Still another allegation is that this water, when bottled, preserves all of its qualities, and that it has from 1825 on, become an extensive article of commerce of much profit to the proprietors, and is sought for in the market by these names.

If this water was an artificial compound of worth, of such fame as to be in public demand, and its ingredients and the proportion of their admixture were the result of the study, information and skill of the owner, and known only to him, an imitation of any proper symbol by which he guaranteed to the purchaser the verity and origin of the compound, would be a violation of the rights of both. And why ? For that the purchaser has a right to have the very thing which he seeks, and the owner has the right that the very thing sought shall be sold at his profit. It does not alter this right that the compound held for sale, and sought for, is made by nature and not by art. The owner of its sole place of production is the exclusive owner of it in the last case as in the first. And in the last case, as in the first, the buyer seeks that very thing. And both have the right that the truthful symbol or device which tells of the genuineness of its origin shall not be imitated with intent or effect to deceive. It is the peculiarity of the article, its merit which is individual and exclusive, which attracts the buyer. It is the sole power, from having sole control of the place of origin, co furnish this peculiarity, which is the advantage ■ of the owner, and is his property of value. The trademark adopted is the indication to the first of where he may feed his desire, and the protection to the last that he shall keep the profit of being the one who does feed it.

It is true that in most of the cases which have been the occasion of the rules laid down on this subject, the article in question has been artificial. But it will be difficult to show a reason for any of these rules, which does not apply to the proprietorship of a unique product of nature, as well'as to that of a unique product of art. If, as has been said, the origin of the right to a trademark is in the sentiment of natural equity, that within certain limits, imposed by law for the benefit of society at large, every one should enjoy an exclusive profit in the result of his powers of invention, ingenuity or skill; that sentiment is as well invoked to protect every one in the enjoyment and profitable use of the property in a peculiar natural product which he has acquired with the avails of his industry, sagacity and enterprise. Sometimes it is said that the essence of the injury is fraud upon the owner, be he the owner who alone can make, or the owner who alone can sell a specific article artificial. It is as much a fraud to injure the owner who has and sells a specific article whose natural source is his alone. The court interferes to protect the plaintiff who has an exclusive right to. use any particular mark or symbol in connection with the sale of some commodity. It is because it is his property for the purpose of such application. For the benefit of the vendor the application of the mark, or symbol may be as well to a vendible commodity natural as to one artificial; and thus the vendor of the one equally with the vendor of the other have a right in his mark. In Amoskeag Manufg. Co. v. Spear (2 Sandf. 599), it is said that “every merchant for whom goods are manufactured has an unquestionable right to distinguish the goods he sells by a peculiar mark or device.” ' He has used his capital to buy the exclusive right to vend for his own profit the peculiar product of another’s skill. He has devoted - and is giving his time, energy, and sagacity to extending the. sale of it, with the hope and expectation of that profit. Ho reason presents itself why he is entitled to protection in the exclusive use of the symbol by which he designates that product of another’s skill, more than one who with equal capital, energy, and sagacity, has purchased the sole place of origin of a peculiar product of nature, and is engaged in the sale of it for profit. Both are so entitled.

It is held that the right of property in a trade-mark can be said to exist only, and can be tested only, by its violation. But its violation is when one adopts or imitates, and applies to an article of his manufacture, the name or mark previously used by another as a designation for his production. The wrong done is the sale, by the first, of his goods, as and for the goods of the last. The violation and the wrong are the same, whether the commodity is one which the hand of man has made, or which nature has put into the hand of man. Certainly so, if into the hand of but one man has it been put. It is a matter of property, and the profitable use of property. If one use the name of another for the purpose of securing to himself, in the disposition of property, advantages which belong to that other, the fraud is complete, and the remedy ought to be complete (Collins Co. v. Cowen, 3 Kay & J., 428). It cannot make a difference if the property comes by the purchase of its sole place of natural origin, or by the possession of the sole power of producing it by human effort. And in accordance with these views are the following authorities, in which the commodity in question was a simple native product, unaltered by any process of art, in the inherent quality infused by nature which made it desirable to buy and profitable to sell: Seixo v. Provezende, 1 Law Rep., 192 ; Newman v. Alvord, 49 Barb., 597; Dixon Co. v. Guggenheim, 2 Brewster (Penn.), 335. The first two cases further resemble the one before us, in that the proprietor of the commodity was the owner of the place of its product, and the name of that place was a prominent and controlling part of the trade-mark.

In Lee v. Haley (39 Law Jour. Ch., 284; S. C., 5 Law Rep., 155) the plaintiffs were dealers in coal, not claiming that they had an article of specific and peculiar merit, but only that by their care and attention to business, they had secured and attached a set of customers who dealt with and knew them by the business style and address which the defendant had copied. The article dealt in was a natural product, in the general reach of all dealers, acquiring no merit from the manipulation of it by the plaintiffs ; and strictly the authority in this connection goes only to the effect that the goodwill of a business represented by a particular style of address, may be protected from the interference of an imitation of that address. Even in that view it would be applicable to the case at hand. But we prefer to place our decision' distinctly upon an affirmative answer to the first question above stated.

These names of “ Congress Water ’ ’ and “ Congress Spring Water ” have, as the complaint alleges, ever since 1825, been used and enjoyed by the proprietors of this spring in reference to it and its waters, exclusive of all other persons ; and upon the bottles containing the water, upon the corks of the bottles, and upon the boxes in which the bottles are packed for transportation, have the successive proprietors from that time down, used a form, but slightly varying, of words and letters, as proprietary marks denoting the contents thereof, and under the use of these marks traffic and sale thereof have become profitable, yielding a handsome revenue. Keeping in mind the facts established for the purposes of this case by the allegations of the complaint, that there is but one Congress Spring, and but that one spring from which does flow Congress Water, exclusively possessed of these peculiar curative medicinal qualities, and there can be no question but that these proprietary marks, adopted and used by the • plaintiffs and their predecessors, do indicate the true origin and ownership of this water, and that they have been, and are now appropriated as designating the true origin and ownership of the article to which they are affixed. And whatever may be the counter-allegations of the defendants’ answer, and whatever it may be in their power to show upon the trial of an issue, the fact as presented to us by the complaint is, that of the numerous other mineral springs at Saratoga, none of them possess the peculiar curative properties of that owned by the plaintiffs, nor was any of them ever called by the name of Congress Spring, or the waters thereof called Congress water, so that none other than the plaintiffs may use the proprietary marks adopted by them, upon any article of water but theirs with equal truth, nor has any an equal right to employ these marks. These marks designate the name of the water to which they are applied ; they designate not only its general, but its peculiar distinctive and popular quality ; and they designate its origin, ownership and place of product. Not merely that it comes from Saratoga, and is of a general character common to all the waters of that place, but that it has a specific and individual character and quality belonging alone to this spring, and which has its origin nowhere else.

By the application of capital, business sagacity and enterprise, this spring and its product have become extensively known and favorably received. That product is sought after and received by this name. It is not to trust to our common apprehension of things to believe that one who wishes for the medicinal water which he has used before, or heard of, as coming from the Congress Spring at Saratoga, does not mean that specific water when he inquires for it by its specific name. And it is this name, the trademark of the plaintiffs, which is the short phrase between buyer and seller which indicates the wish to buy and the power to sell water from that origin, that place, of that ownership. This phrase, this device, is the trademark of the plaintiffs, and is of value to them, as thus designating at once this their own particular article of sale, and guaranteeing the verity of its origin. They have the right to "be protected in its exclusive use, for under the facts as shown by the complaint, none other can use it with equal truth, and none other has equal right to employ it for the same purpose.

The exhibits annexed to the complaint tend to show that the defendants are using marks and inscriptions which do resemble in many respects those previously adopted by the plaintiffs and their predecessors, and which in some respects are an imitation not warranted by anything presented to us on the argument or appearing in the papers. The complaint shows the intent of the defendants to deceive the public by certain marks and inscriptions of a form similar to those of the plaintiffs, and to induce the belief by it that the article sold by defendants is the same article as that sold by plaintiffs; and that they are selling the same to persons wishing to buy it, as the original Congress water, from the Congress Spring of the plaintiffs, to the damage of the plaintiffs. It .is not necessary for us to examine closely the allegations. This is not a question as to the continuance of an injunction order restraining the defendants, but one whether the plaintiffs shall be allowed to make proof upon the issues raised by the pleadings. We think the allegations for the complaint sufficient for that purpose.

A motion to dismiss a complaint, for that it does not allege facts sufficient to show a cause of action, is in the nature of a demurrer ore terms. And in that view we think the complaint avers sufficient facts to show a cause of action and to permit the plaintiffs to make their proofs.

It is insisted by the learned counsel for the respondents, that the complaint avers no fact which shows that the appellants acquired the right to use the marks and emblems of their predecessors. The complaint avers that the-appellants purchased the spring. It does not by any distinct and special allegation aver that they bought the business, or the good will, or the right to use any particular marks or inscriptions, or any of the chattel property connected with or used in the business. The averment that the different proprietors have been in the habit of repurchasing the. bottles from consumers of the waters and refilling them, and selling them again thus refilled, does not come up to such an allegation. But the complaint does aver that the spring was sold to the plaintiffs in 1865, and shows what were from that time the marks and words with which they sold. And for the trademark thus adopted they have the right to ask protection. It avers matter which, if proven, tends to establish an interference on the part of the defendants with this trademark, so that if the right to use the trademark of the first and intermediate proprietors and vendors of the water from this spring is not established, the plaintiffs may be able to establish such an imitation of the marks and devices which they have adopted as calls for the interference of the court. Moreover, a property in trademark may be obtained by transfer from him who has made the primary acquisition, though it is essential that the transferee should be possessed of the right either to manufacture or sell the merchandise to which the trademark has been attached ( Upton on Tradem., p. 52).

And it may also pass by operation of law to any one who at the same time takes that right (Dixon Co. v. Guggenheim, supra; and see Brooks v. Gibson, 34 Beav., 566).

The plaintiffs purchased of the former proprietors the spring. They took the whole property in it. They thus obtained that which was the prime value of it, -the exclusive right to preserve its water in bottles, as an article of merchandise, and the exclusive right to sell it when bottled. Thus they acquired the business of their predecessors, for, the plaintiffs owning the spring, no one else could carry on the business. And under the rules above stated, they acquired by assignment or operation of law the right to the trademark before that in use to designate the article upon which this business was carried on (see also Hall v Burrows, 10 Jur. N. S., 55).

We are, therefore, of the opinion that plaintiffs should have been allowed to adduce proofs in substantiation of the averments of their complaint.

It follows that the judgment of the courts below should be reversed, and a new trial granted, with costs to abide the event.

All the judges concurred, except Andrews, J„, who did not sit.

Judgment accordingly.  