W2103 CASWELL, MASSEY & CO., pharmaceutical chemists.
Jan 1 1900
From: Newport R.I.
ESTABLISHED A.D. 1780
With the Compliments of
CASWELL, MASSEY & CO.,
NEW YORK AND NEWPORT, R.I.
Corner 25th Street
75 FIFTH AVENUE
Corner 47th Street
237 THAMES STREET.
Corner Mill Street
6 CASINO BUILDING.
THE former firm of Caswell, Hazard & Co., consisting of John R. Caswell, Rowland N. Hazard and John C. Hazard, expired by its own limitation, July 31, 1876.
The Hazards, without the knowledge or consent of J.R. Caswell, filed a certificate for the continued use of (and continued the firm name of Caswell, Hazard & Co., although there was no person by the name of Caswell in the firm, and had not been, except John R. Caswell, since the retirement of his brother, Philip Caswell, Jr., in July, 1872.
The Hazards undertook to settle up the outstanding accounts of the former firm, and to account therefore with John R. Caswell.
In 1876, John R. Caswell having associated with him Mr. Massey and Mr. Blackman, opened drug stores at No. 1117 Broadway, at No. 578 Fifth Avenue, and in Newport, R.I.
In June, 1878, being unable to procure an accounting with the Hazards, John R. Caswell brought an action in the Supreme Court to compel them to Account.
Thereupon the Hazards, under pretence that they were the successors of Caswell, Hazard & CO., and entitled to all its good will and trade marks, in August, 1878, brought an action in the Supreme Court to restrain our firm from using the trade mark label on colognes, known as Toilet No. 6, and also an action in the Supreme Court to restrain our using the legend "Established 1780" in our business, and procured an injunction against our firm during the tendency of the action.
We have remained under this injunction until the decision of Judge Andrews, one of the justices of the Supreme Court, dismissing the complaint, in May, 1885.
The superior court case was decided against us, but was reversed by the court of appeals, and on a retrial, the court dismissed to complaint, and this judgment has been affirmed by the general term at its last session, Chief Judge Sedgwick delivering the opinion.
We feel that after remaining so long silent during these vexatious litigations, we owe a duty to ourselves and to the public to make this statement of facts.
The pretension of the Hazards to being the sole successors of Dr. Charles Feke, who established a drug store in Newport, in 1780, and entitled to all the trade marks for proprietary articles manufactured by the former firm of Caswell, Hazard & Co., was effectually exploded.
Judge Andrews, after finding that John R. Caswell, as a boy, was a clerk with Hazards and Caswell, and was a partner in Caswell, Mack & Co. (in which there was no person by the name of Hazard), from 1859 to 1867, and his connection with the New York Store as a member of the firm of Caswell, Hazard & co., Finds that he had charge and supervision of the retail business of said copartnership, and of making, preparing and dispensing prescriptions, and of the general internal arrangements and management of the stores pertaining to the retail prescription department of said business. He says:
"The reputation of the Hazards and Caswells as druggists has been principally made since 1859, and the name of Caswell has been at the head of the firm since that time.
"The defendant, Caswell, according to the testimony, has personally and largely assisted in creating the reputation of the firm. He is just as much the 'successor' of Dr. Feke and Dr. R.R. Hazard as the plaintiffs, and can just as properly and truthfully use in his business the legend 'Established 1780' as they can. And as the reputation in the drug business which the plaintiffs (Hazards) seek to appropriate to themselves has been principally made in New York since 1859 by firms of which the defendant, Caswell, and his namesake (brother), Philip Caswell, were members, I do not see why his (Caswell's) right, legally and morally to represent to the public that he is a successor of Hazard and Caswell, Caswell, Mack & Co., and Caswell, Hazard & Co., is not just as good as the plaintiff.
"And until a sale, the defendant (Caswell) has the same right to use the legend as the plaintiffs (Hazards), unless they have in some manner acquired his (Caswell's) interest in it, but if does not appear that the plaintiffs ever acquired such interest."
Judge Danforth, delivering the opinion of the Court of Appeals, 93 N.R., 259, says: "Nor is the plaintiff's claims one which in any respect is entitled to support from a court of equity. From a formula once the property of both parties, the cologne in question came into favor with the public. Without becoming the exclusive owners of the formula or sole possessors of the art of following it, or of the emblem or device under which as a trade mark it has acquired reputation, without claiming even an exclusive right to make this cologne, they do claim the exclusive use of the sign of token, which, according to their theory, will represent to every one that they are the exclusive manufacturers of it. This could not be true.
"In the next place, I can find no evidence upon which the plaintiffs can be justified in putting upon the market the article in question under the former firm name of Caswell, Hazard & Co. It might be described as manufactured by them as the successors of that firm, but nothing more.
"It certainly is not true that the cologne is manufactured by Caswell, Hazard & Co., * * * * * and the relief sought by the plaintiffs should for this reason also be denied, upon the doctrine which deprives the party who makes a materially false statement in connection with the property of any claim to the assistance of a court of equity or right to maintain the exclusive use of a trade mark, so worded as to contend a distinct assertion which is untrue, whether it relates to the name of the manufacturer or the place where made, other fact from which it has acquired celebrity.
"I do not overlook the fact that the plaintiffs undertook to comply with the provisions of the act authorizing in certain cases the continued use of copartnership names."
The purpose of the Hazards in these litigations is obvious. These statements are facts as established by the courts, and they are left to the judgment of the public and the medical profession without comment.
By these divisions the firm of Caswell, Massey & Co. have established their right to the legend "Established 1780," and to all the trade mark rights of proprietary articles which were manufactured by the former firm of Caswell, Hazard & Co., when there was a Caswell in it.
CASWELL, MASSEY & CO.,
JOHN R. CASWELL,
WILLIAM M. MASSEY,
LYMAN R. BLACKMAN