﻿52 
  History 
  of 
  Durham. 
  

  

  augmeiited 
  the 
  bulk 
  of 
  this 
  testimony 
  as 
  to 
  make 
  a 
  need- 
  

   lessly 
  expensive 
  record 
  of 
  it, 
  and 
  to 
  devolve 
  upon 
  alien- 
  

   gaged 
  in 
  its 
  examination 
  a 
  wearisome 
  amount 
  of 
  unprofita- 
  

   ble 
  reading. 
  Still 
  it 
  is 
  a 
  subject 
  of 
  congratulation 
  that 
  the 
  

   cause 
  is 
  now 
  fully 
  developed 
  in 
  all 
  its 
  aspects 
  and 
  bearings, 
  

   and 
  has 
  been 
  argued 
  with 
  a 
  discriminating 
  force 
  and 
  full- 
  

   ness 
  of 
  research 
  alike 
  masterly 
  and 
  instructive, 
  and 
  calcu- 
  

   lated 
  to 
  produce 
  settled 
  convictions 
  one 
  way 
  or 
  the 
  other. 
  

  

  Our 
  first 
  task 
  is 
  to 
  acquire 
  accurate 
  and 
  precise 
  ideas 
  of 
  

   the 
  issues 
  made 
  by 
  the 
  pleadings. 
  If 
  this 
  be 
  done, 
  and 
  then 
  

   the 
  law 
  be 
  properly 
  applied, 
  it 
  seems 
  to 
  me 
  we 
  can 
  reach 
  a 
  

   safe 
  conclusion 
  almost 
  without 
  resorting 
  to 
  the 
  voluminous 
  

   testimony. 
  The 
  plaintiffs 
  claim 
  a 
  trade-mark, 
  designed 
  in 
  

   1865 
  or 
  1866, 
  and 
  continuously 
  used 
  ever 
  since. 
  It 
  is 
  exem- 
  

   plified 
  and 
  made 
  a 
  part 
  of 
  their 
  bill. 
  The 
  descriptive 
  terms 
  

   are: 
  "Genuine 
  Durham 
  Smoking 
  Tobacco," 
  and 
  the 
  sym- 
  

   bol 
  or 
  device 
  is 
  the 
  side 
  view 
  of 
  a 
  Durham 
  bull. 
  They 
  as- 
  

   sert 
  that 
  this 
  trade-mark 
  has 
  been, 
  violated 
  by 
  the 
  defendant 
  

   in 
  using, 
  under 
  date 
  of 
  January, 
  1871, 
  tliis 
  term: 
  "The 
  

   Durham 
  Smoking 
  Tobacco," 
  and 
  the 
  symbol 
  or 
  device 
  of 
  

   "a 
  bull's 
  head," 
  with 
  a 
  note 
  of 
  the 
  defendant 
  of 
  Wright's 
  

   patent 
  for 
  the 
  manufacture 
  of 
  " 
  Genuine 
  Durham 
  Smoking 
  

   Tobacco." 
  This 
  latter 
  trade-mark 
  of 
  the 
  defendant 
  is 
  also 
  

   exemplified 
  in 
  the 
  bill 
  and 
  placed 
  in 
  juxtaposition 
  and 
  con- 
  

   trast 
  with 
  plaintiffs' 
  trade-mark. 
  

  

  The 
  answer, 
  while 
  calling 
  for 
  full 
  proof 
  of 
  the 
  allegations 
  

   of 
  the 
  bill, 
  does 
  not 
  directly 
  deny 
  this 
  statement, 
  but 
  rests 
  

   the 
  defence 
  upon 
  three 
  chief 
  grounds 
  : 
  1. 
  The 
  prior 
  use 
  of 
  

   this 
  trade-mark 
  by 
  VV^right, 
  (under 
  whom 
  the 
  defendant 
  

   claims,) 
  as 
  far 
  back 
  as 
  1860 
  ; 
  2. 
  That 
  the 
  defendant's 
  trade- 
  

   mark 
  is 
  not 
  an 
  infringement 
  of 
  the 
  plaintiffs', 
  but 
  is 
  wholly 
  

   dissimilar; 
  and, 
  3, 
  That 
  the 
  plaintiffs 
  by 
  fraudulent 
  repre- 
  

   sentations 
  in 
  the 
  premises, 
  have 
  deprived 
  themselves 
  of 
  all 
  

   equitable 
  assistance. 
  

  

  The 
  main 
  contest 
  is 
  considered 
  by 
  all 
  parties 
  and 
  the 
  

   counsel 
  in 
  this 
  case 
  to 
  rest 
  upon 
  the 
  irriority 
  in 
  the 
  use 
  of 
  

   this 
  disputed 
  trade-mark. 
  The 
  defendant 
  does 
  not 
  pretend 
  

   that 
  AVright, 
  under 
  whom 
  he 
  claims, 
  ever 
  used 
  the 
  identi- 
  

   cal 
  trade-mark 
  set 
  up 
  by 
  the 
  plaintiffs. 
  On 
  the 
  contrary, 
  

   he 
  takes 
  especial 
  pains 
  to 
  show 
  that 
  he 
  placed 
  no 
  particular 
  

   value 
  on 
  the 
  term 
  ^^ 
  Durham, 
  ^^ 
  which 
  he 
  now 
  asserts 
  belonged 
  

   in 
  common 
  to 
  his 
  and 
  plaintiff's 
  brands. 
  The 
  discovery 
  

   which 
  he 
  had 
  made, 
  and 
  for 
  which 
  he 
  seeks 
  protection^ 
  was 
  

  

  