Wm. Rogers Mfg. Co. v. Simpson.

In no other way can the real question be reached and disposed of.

If any person or corporation shall hereafter place upon the market silver-plated ware bearing a stamp the conspicuous and valuable part of which shall be the word "Rogers," and therefore liable to mislead consumers as to the origin and ownership of the same, the right to do so can be subjected to the test of judicial investigation and determination. If the judgment is that a person having the same name as that which this plaintiff has rightfully adopted and used, and a valuable name and reputation in the market for skill and integrity in the manufacture of silver-plated ware, has made an arrangement with a person or corporation having capital, by means of which, upon a division of profits, he can gain access to the market and make his skill and name available to himself and beneficial to the public; that there is no intent upon the part of either to mislead consumers; that there has been no use of the name in association with misleading signs, words, figures or symbols; and that in fact consumers are not misled by anything except the presence of the word "Rogers," and the omission to note distinguishing symbols, the law does not condemn the arrangement. The injurious result is one of the disadvantages assumed by the person on whom it falls when he selected a personal name as his mark. The objection on the part of the plaintiff at this point rests not upon any legal principle, but upon its distrust as to the ability of the court to detect and prevent fraud. But it is to be remembered that contests between persons bearing the same name as to their right respectively to stamp it upon goods, turn largely upon the intent; that it is a question of fact; and that courts have been and presumably will continue to be equal to the determination of it.

It is the argument of the plaintiff that its goods became known in the market as "Rogers goods;" that the defendant's goods are also known by the same designation; and, therefore, that the latter should be enjoined. But the disadvantages attending the choice of the name of a person as a mark affect every result flowing from such choice. The

Wm. Rogers Mfg. Co. v. Simpson.

speech of the market, calling the plaintiff's goods "Rogers goods," is only the spoken trade-mark of consumers in repetition of the one stamped upon the ware, induced by that. If William Rogers, Jr., has a right to put the name "Rogers" on similar ware, that right cannot be affected by the fact that consumers apply the same spoken trade-mark to it; he is not to be injuriously affected by any use the public may make of a mark which the law allows him to use. The plaintiff has no greater right to prevent the misleading of consumers in the matter of calling the goods of both "Rogers goods" than it has to prevent the same result in the matter of using identical names accompanied by differing symbols as stamps. The mischief is the same in origin, kind and degree. If the plaintiff had impressed the form of two elephants upon its ware as its trade-mark, neither the defendant nor William Rogers, Jr., would have the right to so impress two elephants upon ware as to mislead consumers as to the origin and ownership of the goods. If by reason of the plaintiff's mark its goods had come to be known in the market as "two elephant goods," neither the defendant nor William Rogers, Jr., would have the right to so mark goods as that they should come to be similarly known. William Rogers, Jr., has a right to the use of his own name; but he has no right whatever to the use of the form of two elephants in such manner as to interfere with the right of the first appropriator of that device. He would be a trespasser from the beginning in a forbidden field; and without necessity or excuse, for every other form in nature is at his service; and this regardless of his intent; and even if he had done it in ignorance that the device had been appropriated by another.

The first count in the complaint charges the defendant with the publication of an advertisement to the effect that it is a manufacturer of the celebrated William Rogers, Sr., spoons, forks and knives. The finding is that the defendant knew that the use of the mark and the publication of the advertisement would cause its goods to be known in the market as "Wm. Rogers goods; " but the advertisement was not intended or calculated to induce the public to

Wm. Rogers Mfg. Co. v. Simpson.

believe that the goods so designated were manufactured by the plaintiff. The purpose of the publication was to direct public attention to the fact that the manufacture of its goods was controlled by William Rogers, Jr., whose name. they bear, and to the celebrity of its goods because of his supervising skill and reputation. Upon the facts, the defendant by permission from William Rogers, Jr., for its own advantage and for his as well, has availed itself of whatever right he had to use his own name, with cautionary accompanying devices, for the honest purpose and intent of informing consumers that his labor and supervising skill have gone into the manufacture of spoons at the manufactory of the defendant at Wallingford. The word "Rogers," regardless of the devices, is the sole source of confusion.

The portion of the defendant's circular complained of in the second count is as follows: "Sectional Plated Spoons and Forks (Eagle) Wm. Rogers X 12. Triple plated upon all points exposed to wear. Plated by the method invented by Wm. Rogers in 1855, who was the original inventor of Sectional Plate. Wm. Rogers, (since 1878,) Wallingford, Conn., formerly of Hartford and West Meriden."

The finding is that it "is not misleading to a person familiar with the facts stated therein and with the fact that William Rogers, Sr., died in 1873; but persons not so familiar might be led by it to suppose that the William Rogers who was the inventor of sectional plate in 1856, was in the employ of the defendant at the time the circular was printed" in 1880.

Upon the finding these statements are true; and there is no finding that they were made with the fraudulent intent to mislead the public into the belief that the goods so advertised were those of the plaintiff, and, as in all of the other parts of the case, upon the last analysis the confusion is found to reside in the fact that two manufacturers bearing the same name, having equal skill and reputation in the same art, have each stamped his name upon his goods with distinctive symbols. As has been said, having equal rights,

Gray v. Danbury.

under such circumstances they must share both the advantages and disadvantages of the situation.

The Superior Court is advised to dismiss the complaint.

In this opinion CARPENTER and GRANGER, JS., concurred. PARK, C. J., and LOOMIS, J., concurred fully in the legal principles laid down in the opinion, but thought that, under the arrangement made by William Rogers, Jr., with the defendant company for the manufacture and sale of the ware stamped in the manner in question, he could not be regarded as standing in the position of a manufacturer of the ware.

GABRIEL S. GRAY vs. THE BOROUGH OF DANBURY AND THE NEW YORK & NEW ENGLAND RAILROAD COMPANY.

Fairfield Co., Oct. T., 1886. PARK, C. J., CARPENTER, PARDEE, LOOMIS and GRANGER, JS.

A railroad was carried over a street in a borough by a bridge, which was built at a height above the street directed by the borough and approved by the railroad commissioners. Afterwards the road-bed was raised fourteen inches, in part from natural causes and in part from the placing of gravel thereon by the borough. The plaintiff, in passing under the. bridge upon a load, was injured, without negligence on his part, by his head striking an iron truss of the bridge. The railroad company was found to have been guilty of no negligence, but the borough to have been negligent in causing or permitting the road-bed to be filled up till the space under the bridge was insufficient. Held that the borough was liable for the injury, and that there was no liability on the part of the railroad company.

The railroad company was clearly not bound to raise the bridge from year to year as the street was raised, and was not bound to remove the earth and gravel placed there by the borough. The borough alone could make repairs, and it alone was responsible for doing it improperly. There is no law that fixes the height of railroad bridges over highways. It should be sufficient to reasonably accommodate the public travel, and what is reasonable must depend in some measure upon the circumstances of each case.

Where the railroad company, its engineers, the railroad commissioners,

Gray v. Danbury.

and the borough within which the highway lay, regarded the height of the bridge sufficient when made, and the injury was attributable wholly to the raising of the road-bed below, it was held that the court below was justified in finding that the railroad company had been guilty of no negligence in the original construction of the bridge. The statute (Gen. Statutes, p. 324, sec. 30) provides that railroad companies at all crossings of highways shall make and maintain such bridges, embankments and approaches as the convenience and safety of the public travel on the highway may require. Held that this statute imposed no duty upon the railroad company, when the bridge was once properly made, to maintain the highway in such condition as should prevent the bridge from interfering with public travel. The existence of a railroad interfering with a highway, although the company may have done all that is required of them by statute, will often impose additional burdens upon towns in maintaining highways, but this expense the towns may reasonably be required to bear. The statute (Gen. Statutes, p. 232, sec. 10) provides that when an injury is caused by a structure legally placed on a highway by a railway company, the company, and not the party bound to keep the road in repair, shall be liable therefor. Held not intended to apply to a case where the structure was a bridge over the highway, and the injury resulted wholly from the negligence of the party bound to keep the highway below it in repair.

(Argued January 5th-decided February 11th, 1887.)

ACTION for an injury from a defective highway of the defendant borough and a defective bridge of the defendant railroad company; brought to the Superior Court in Fairfield County. Each of the defendants suffered a default, and the case was heard in damages before Andrews, J., and the following facts found:

The borough of Danbury is by law bound to maintain and keep in repair all the highways within its limits. West street in it is a much traveled public highway, formerly an ancient town road, leading westerly from the borough. In the year 1880 the New York & New England Railroad Company constructed its track, by a substantial iron bridge, over West street and within the borough. The borough at the time, in view of its liability for the highway, insisted that the bridge should be built according to its wishes; and such negotiations were had between the borough and the railroad company, that the bridge was built upon plans furnished or approved by the borough, and was put at such a