Appeal from the District Court of the United States for the Northern District of New York.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This suit is to enjoin the use of the name "Rogers" on silver-plated flatware and other tableware, as well as to enjoin the use of various trade-marks and to restrain unfair competition.
Complainant claims to be the successor of the original Rogers firm that began business in 1847 and attained a high reputation in the manufacture of silver plate. We think this position cannot be sustained so far as it seeks exclusive rights derived from the three brothers, William, Simeon S., and Asa H. Rogers, who began business together in Connecticut in 1847 and established a high reputation as faithful craftsmen in making table silverware by an electroplating process. The three Rogers stayed together until 1856, when William left the corporation which the brothers had formed, known as Rogers Bros. Manufacturing Company. He then joined others in a corporation known as Rogers Smith & Co., which manufactured silverplated ware under the mark "Rogers Smith & Co. A 1." In 1862, Rogers Smith & Co. merged with the Rogers Bros. Manufacturing Company and under the marks "(Star) Rogers Bros. A 1," "Rogers Brothers," "Rogers Bros.," and "Rogers Smith & Company" continued the business until the concern became insolvent in 1862 and the assets, other than the good will and trade-marks, were distributed by the Connecticut probate court. Shortly after the failure, a new corporation called Rogers Smith & Co. was organized (in which no one named Rogers was interested), which was sold out to Meriden Brittania Company in 1863. About November, 1862, the original three Rogers brothers entered the employ of the Meriden Company without, however, obtaining any proprietary interest in that corporation. It was agreed that the company should not sell goods stamped with the name "Rogers" unless they bore the name or trade-marks" of "Rogers Brothers." The goods were marketed by the company under the name "1847 Rogers Bros. A 1."
Asa H. and Simeon S. Rogers had left Rogers Bros. Manufacturing Company in 1858 and, before going into the employ of the Meriden Company, had established a business of their own at Waterbury, Conn., under the name of Rogers & Bro., using the trade-marks "Rogers & Brother A 1," "(Star) Rogers & Brother A 1," "(Star) Rogers & Bro. A 1," "(Star) R. & B."
In 1864, William Rogers left the employ of the Meriden Company and went into that of William Rogers Manufacturing Company in Hartford, a partnership in which neither he nor any one named Rogers ever owned an interest. His son William Rogers, Jr., also associated himself with the concern. The trade-marks used by it were "(Anchor) William Rogers & Son AA," "William Rogers & Son," "1865 William Rogers Mfg. Co. AA," "William Rogers Mfg. Co.," "Rogers Nickel Silver," "(Anchor) Rogers (Anchor)."
In 1868, William Rogers again entered the employ of the Meriden Company and his son went with him.
In 1871, Asa Rogers and one Watrous organized Rogers Cutlery Company.
In 1878, Simpson, Hall, Miller & Co. was formed at Wallingford and employed William Rogers, Jr. It used the mark "(Eagle) Wm. Rogers (Star)."
In 1868, Cephas, Gilbert, and Wilbur F. Rogers, all being unconnected with the old Rogers family, founded a firm at Meriden under the name of C. Rogers & Bros. They used the trade-marks "C. Rogers & Bros." and "C. Rogers & Bros. A 1." It did not begin to manufacture silver plate until 1883.
In 1886, the Rogers & Hamilton Company was formed in Waterbury, with which none of the Rogers brothers was connected. It did not manufacture silver plate, but only hollow ware. Indeed, the original Rogers had all died; William Rogers in 1873, Simeon in 1874, and Asa in 1876.
It will be seen that prior to 1894, when William A. Rogers, who is defendant's predecessor, began business, the following concerns were in the business of manufacturing silver plate: Rogers & Bro., deriving title from Asa and Simeon Rogers in 1858; Meriden Brittania Company, deriving title from all three of the original brothers in 1862; William Rogers Manufacturing Company deriving title from William Rogers in 1865; Rogers Cutlery Company deriving title from Asa Rogers.
In addition to the foregoing, the following concerns: C. Rogers & Bros. (1868), Simpson, Hall, Miller & Co. (1878), and the Rogers & Hamilton Company (1886) -- were in competition with the complainant's predecessors in 1894 when ...