STACHELBERG

v.

PONCE

Mr. Justice Harlan delivered the opinion of the court.

After stating the facts as above, he continued: We are of opinion that the plaintiffs are not entitled to an injunction restraining the defendant from using the words “La Normanda” or “Normanda” as'part of a brand or label for cigars manufactured or sold by him. If it was' satisfactorily shown that those words were not used in the trade j;o designate a particular kind of/ cigars, until after the words “La Normandi” or “ Normandi ” had become a part of -the established trade-mark of Bijur, it might be necessary to consider whether the former words taken in connection with the entire label or brand used by the defendant, his mode of packing his cigars, and their size .and appearance, were calculated to deceive the public by inducing the belief that they were the same cigars as La: Normandi cigars, manufactured and sold by Bijur, and by the plaintiffs. But no such case is made by the proof. On the contrary it appears, by a preponderance of evidence: 1. That, the mode in which Bijur, and after him Stachelberg & Co., packed their La Normandi cigars, the "kind of boxes used by them, the number of cigars in each, bunch, the particular color of the ribbon or tape around, each bunch of twenty-five, the putting of two hundred and fifty cigars in each box, and the size and shape of the cigars, were all old in the trade, prece'd-. ing, in point of time, the adoption by Bijur of the words “ La Normandi” as part of his trade-name;' 2. That for several years prior to the adoption by Bijur of his trade-mark, and from about that date until the bringing of this suit, cigars resembling the-La Normandi cigars, in size and shape, in the color óf the ribbon or tape by which the bunches of twenty-five were tied, and in the manner in which they were put up and packed, were and have been made and sold, in quite large numbers, in different parts of thrs.country, under the name of “ La. Normanda.”. An effort is made to'discredit the evidence establishing these facts, by showing by witnesses, engaged .for . many years in the business of manufacturing and selling cigars, that they never knew or heard of any being sold under the name of “ La Normanda.” But the evidence to that effect is entirely negative in its. character, and is not sufficient to overcome the direct, positive testimony of witnesses, some of whom, as early as 1853, actually manufactured and sold “ La Normanda”-cigars of the kind above described, while others remember that domestic cigars, under that designation, were in the market before Bijur commenced the manufacture of the “La Normandi” cigars. - In this view of the evidence the plaintiffs are not'entitled to the relief asked. The adoption by Bijur of the words “La Normandi,” as part of his trademark, could not take away the right previously acquired by the public in the use of the words “ La Normanda ” as indicating a particular kind of cigars.

This conclusion is sufficient to dispose of the case, and renders it unnecessary to consider other grounds'upon which, it is-insisted, the decree below should be süstáiried.

The choree is affirmed.