CORBIN

v.

GOULD

Mr. Justice Lamar,

after stating the case as above, deliv-' • ered the opinion of the court.

Ve are of opinion that the decree below must be affirmed.' The material allegations of the bill are not sustained by the evidence, and the one which presents the entire foundation for the claim .of relief is disproved by the exhibit which the complainants append to their-bill. After alleging that complainants had adopted as their trade-mark the word “ Tycoon,”' and stamped it upon packages'of a particular kind of tea, manufactured and imported by themselves alone into the American market in 1879, and that the said word “Tycoon,” having never before befen adopted as a trade-mark, had become known to the trade as exclusively designating a particular kind of tea dealt in by the complainants, the bill states that, for the purr' pose of obtaining protection for' their exclusive right to the said word “ Tycoon ”• as a trade-marlc, they deposited it as above described in the Patent Office at Washington ; and that in 1881, the same was registered and recorded by the Commissioner of Patents of the United States, and a certificate-was issued therefor, securing to the complainants protection for 'the said trade-mark. The exhibits A and P, appended to the bill, and other exhibits attached to Corbin’s deposition, show that the trade-mark adopted b} the complainants, deposited and registered in the Patent Office, is not the word “ Tycoon,” as stated, in the bill, but a transverse diamond-shaped symbol inclosing the word “ The ” at the top, and “ Tea ” at the bottom, between which, lengthwise the diamond, is the word “ Tycoon.” • • A fac-simile is as follows:-

. The claim of the complainants, filed in the Patent Office for the registration of the trade-mark in question, is in these words: “ Opr trade-mark consists of the letters and words and, arbitrary symbols ‘The.Tycoon Tea, I. 0. & PC., 0., Japan Tea,’ ornamental scroll border, transverse diamond shape. . . . The letters or words ‘ I. 0. & M., C., Japan Tea,’ may be omitted or they may be partly omitted and partly changed as to their position within the square without materially altering the character of our trade-mark, the essential features of which are the symbol.of a diamond and the arbitrarily selected .word ‘ Tycoon.’ ” ' <

It is not pretended that this combination, claimed'and registered as' the trade-mark of. complainants, has ever been used by the defendants either in the identical form, or in a form having such resemblance thereto as might be calculated to deceive. A comparison" of the' label of defendants with that of the complainants, •asTgiven-in the. exhibit to the bill,'shows many striking .points of. difference,-and but few, if any, points of similarity, except that the 'word “ Tycoon ” is found in both.’ In the complainants’ label, the diamond figure, the words “The Tycoon Tea,” “Choicest,” and “Spring Leaf” are printed in blue ink; and the other words are printed in black ink, all in different kinds of ornamental letters —the whole surrounded by an ornamental black scroll border. The defendants’ label is water-marked in red and pink colors, surrounded by a heavy blue .border, with black decorations. The words are printed in various styles of letters of different colors- — -the words “Tycoon Chop,” for instance, being in large white letters with red facings, on a solid black ground; and “ Japan Tea,” in large black letters, some of which are plain and some ornamental. On the complainants’ label the proprietorship of the tea is indicated by the letters “ I., C. & M:,” representing' Ingraham, Corbin & May, the predecessors of the present firm; while on the defendants’ label the name of their firm and their place of business appear prominently near the bottom of it.

These labels are so entirely dissimilar that it is difficult to perceive how they could be mistaken the one for, the other. A. mere glance is sufficient to distinguish them. There asee certainly no more points of similarity between them than are to be found ordinarily between tea labels or facings; and were it not for the fact that the word “ Tycoon ” is found in both of them there would be no semblance of a case of infringement;

"With respect to the word “ Tycoon,” the evidence shows beyond question that it has been used as a name or brand for Japan tea for many years. Invoices of “ Tycoon Tea” -were, received at the custom house in San Francisco as early as May 15, 18Y3, as shown by a copy of the official records of that office filed in this case; and the evidence of dealers and merv chants of California is all’to the effect that the word was in\ common use as a brand for Japan tea for several years prior! to that date. It is unnecessary to go into this evidence in detail; but it is conclusive as to the long use of the word prior to, the alleged adoption of it as a part of the trade-mark of the complainants.

The authorities cited by complainants’ counsel, to show that the prior use of a word as a trade-mark by another party who’ had abandoned it is-not sufficient to debar the present owner of it from protection, do not apply to this case. At the time complainants claim to have adopted the word “ Tycoon ” as their trade-mark, for the particular species of tea dealt in by them, it was not an abandoned trade-mark, previously used by some other person or firm to designate a particular quality of tea; but it was, and had been for many years, in general and common use as a term descriptive of a class of teas -introduced into the American market — a term which all men engaged in the tea business had an equal right to use, and which belonged to no one individual either as a trade-mark or a trade label. It belonged to the public, as the., common property of the trade, and, therefore, was not subject to appropriation by any one person. The following language used in The Amoskeag Manufacturing Company v. Spear, 2 Sandford, Sup. Ct. N. Y. 599, quoted with approval by this court in Canal Company v. Clark, 13 Wall. 311, 324, is applicable to the claim of the complainant in this case: “He has no right to appropriate a sign or a symbol [or a name] which, from the nature of the fact it is used to signify,’others may employ with equal truth and, therefore, have an equal right to employ for the same purpose.” See also Goodyear Co. v. Goodyear Rubber Co., 128 U. S. 598; Liggett & Myers Tobacco Co. v. Finzer, 128 U. S. 182; Stachelberg v. Ponce, 128 U. S. 686; Menendez v. Holt, 128 U. S. 514.

Even conceding that the complainants may claim a trademark for the combination of the diamond and the words inclosed .in it, as described in their application to the Patent Office, there was, upon the authorities above cited, clearly no trade-mark in the word “ Tycoon ” considered by itself.

The decree 'of the court below dismissing the bill should be, and it hereby is,

• Affirmed.