﻿The 
  Blackwell 
  Litigation. 
  53 
  

  

  his 
  preparation 
  for 
  or 
  mode 
  of 
  treating 
  smoking 
  tobacco, 
  

   so 
  as 
  to 
  mitigate 
  its 
  noxious 
  qualities 
  and 
  impart 
  to 
  it 
  an 
  

   agreeable 
  flavor. 
  This 
  is 
  the 
  merit 
  he 
  claims; 
  this 
  the 
  pro- 
  

   cess 
  he 
  has 
  patented. 
  The 
  testimony 
  and 
  the 
  ansvrer 
  con- 
  

   cur 
  in 
  proving 
  that 
  the 
  whole 
  merit 
  of 
  this 
  smoking 
  to- 
  

   bacco, 
  and 
  its 
  celebrity, 
  were 
  due 
  to 
  the 
  use 
  of 
  the 
  flavoring 
  

   he 
  gave 
  his 
  tobacco. 
  He 
  was 
  confessedly 
  the 
  first 
  to 
  com- 
  

   mence 
  its 
  manufacture 
  at 
  Durham 
  station. 
  There 
  was 
  noth- 
  

   ing 
  in 
  the 
  locality 
  he 
  could 
  have 
  reasonably 
  counted 
  upon 
  

   to 
  commend^ 
  his 
  manufacture 
  to 
  the 
  public. 
  But, 
  if 
  we 
  are 
  

   to 
  credit 
  the 
  defendant's 
  answer 
  and 
  his 
  testimony 
  in 
  this 
  

   cause, 
  it 
  was 
  his 
  discovery 
  .of 
  the 
  flavoring 
  compound 
  on 
  

   which 
  he 
  plumed 
  himself. 
  Accordingly 
  it 
  was 
  this 
  which 
  

   he 
  emblazoned 
  on 
  his 
  stencil-plate. 
  Take 
  his 
  own 
  state- 
  

   ment 
  for 
  the 
  present, 
  and 
  what 
  was 
  his 
  brand? 
  "Best 
  

   Spanish 
  Flavored 
  Durham 
  Smoking 
  Tobacco." 
  What, 
  in 
  

   view 
  of 
  the 
  pleadings 
  and 
  evidence 
  in 
  this 
  cause, 
  is 
  the 
  

   characteristic 
  — 
  the 
  vital 
  element 
  — 
  of 
  this 
  trade-mark. 
  Man- 
  

   ifestl}', 
  "Best 
  Spanish 
  Flavored." 
  That 
  was 
  the 
  only 
  con- 
  

   spicuous 
  and 
  discriminating 
  element 
  of 
  this 
  trade-mark. 
  

   " 
  Durham," 
  if 
  indeed 
  a 
  part 
  of 
  it, 
  was, 
  upon 
  the 
  defendant's 
  

   own 
  showing, 
  subordinate 
  and 
  insignificant. 
  Now, 
  the 
  

   plaintiffs 
  concede 
  in 
  the 
  fullest 
  manner 
  Wright's 
  superior 
  

   title 
  to 
  the 
  use 
  and 
  brand 
  of 
  his 
  flavoring 
  compound, 
  and 
  

   disclaim 
  in 
  their 
  process 
  any 
  infringement 
  of 
  it; 
  nor 
  does 
  

   it 
  appear 
  there 
  has 
  been 
  any, 
  nor 
  indeed 
  any 
  formal 
  com- 
  

   plaint 
  of 
  it. 
  

  

  The 
  pretension 
  of 
  the 
  defendant, 
  then, 
  amounts 
  to 
  this: 
  

   that 
  because, 
  in 
  18G0, 
  he 
  branded 
  his 
  smoking 
  tobacco 
  

   " 
  Best 
  Spanish 
  Flavored 
  Durham," 
  wholly 
  because 
  of 
  the 
  

   mode 
  in 
  which 
  he 
  flavored 
  it, 
  no 
  subsequent 
  manufacturer 
  

   of 
  the 
  article 
  at 
  Durham, 
  without 
  the 
  use 
  of 
  his 
  process, 
  

   shall 
  brand 
  his 
  as 
  "Genuine 
  Durham 
  Smoking 
  Tobacco," 
  

   with 
  a 
  symbol 
  which 
  he 
  never 
  used. 
  My 
  reply 
  is 
  that, 
  un- 
  

   der 
  the 
  circumstances 
  of 
  his 
  use 
  of 
  the 
  name 
  "Durham," 
  

   there 
  was 
  nothing 
  in 
  it 
  so 
  descriptive 
  as 
  to 
  restrain 
  succeed- 
  

   ing 
  manufacturers 
  at 
  the 
  same 
  place 
  from 
  engrafting 
  it 
  on 
  

   their 
  brand, 
  so 
  long 
  as 
  they 
  laid 
  no 
  claim 
  to 
  nor 
  made 
  any 
  

   use 
  of 
  his 
  " 
  best 
  flavored 
  Spanish 
  " 
  compound, 
  which 
  he 
  in- 
  

   deed 
  appropriated 
  by 
  this 
  first 
  and 
  original 
  use 
  of 
  this 
  only 
  

   conspicuous 
  term 
  on 
  his 
  stencil-plate 
  in 
  1860-'61. 
  It 
  must 
  

   be 
  remembered 
  that 
  Wright 
  was 
  only 
  in 
  the 
  infanc}' 
  of 
  this 
  

   manufacture 
  at 
  Durham 
  ; 
  and 
  that 
  others 
  followed 
  and 
  de- 
  

   4 
  

  

  