﻿56 
  History 
  of 
  Durham. 
  

  

  With 
  this 
  brief 
  vieu' 
  of 
  the 
  law. 
  I 
  proceed 
  to 
  examine 
  the 
  

   second 
  ground 
  of 
  defense 
  : 
  that 
  the 
  defendant 
  has 
  not 
  infringed 
  

   the 
  trade-mark 
  of 
  the 
  plaintiffs. 
  This 
  is 
  scarcely 
  the 
  subject 
  

   of 
  argument. 
  It 
  must 
  be 
  referred 
  to 
  ocular 
  examination 
  and 
  

   decision. 
  Place 
  the 
  respective 
  trade- 
  marks 
  side 
  b}' 
  side, 
  con- 
  

   trast 
  the 
  labels, 
  the 
  words, 
  and 
  the 
  devices, 
  and 
  each 
  one's 
  

   vision 
  must 
  determine 
  for 
  himself 
  whether 
  the 
  imitation 
  is 
  

   such 
  as 
  to 
  deceive 
  the 
  unpractised 
  and 
  unwary 
  customer. 
  It 
  

   matters 
  not 
  uovv', 
  in 
  the 
  critical 
  inspection 
  of 
  them, 
  and 
  aided 
  

   b}' 
  ingenious 
  counsel, 
  we 
  can 
  clearly 
  discern 
  differences 
  

   between 
  the 
  two. 
  The 
  true 
  question 
  is, 
  whether 
  taking 
  the 
  

   " 
  tout 
  ensemble,''' 
  Armistead's 
  trade-mark 
  might 
  not 
  pass 
  with 
  

   the 
  unwary 
  for 
  that 
  of 
  Wm. 
  T. 
  Blackwell 
  & 
  Co.; 
  and, 
  if 
  that 
  

   be 
  so, 
  the 
  wrong 
  is 
  done, 
  and 
  Ihe 
  title 
  of 
  the 
  latter 
  to 
  be 
  

   protected 
  by 
  this 
  court 
  is 
  consummated. 
  For 
  m}'- 
  part 
  I 
  do 
  

   not 
  see 
  how 
  trade-marks 
  so 
  similar 
  could 
  escape 
  being 
  con- 
  

   founded 
  in 
  the 
  market. 
  One 
  reads, 
  " 
  Genuine 
  Durham 
  Smo- 
  

   king 
  Tobacco"; 
  the 
  other, 
  ''The 
  Durham 
  Smohing 
  Tobacco" 
  

   This 
  use 
  of 
  the 
  definite 
  article 
  makes 
  these 
  phrases 
  equivalent. 
  

   To 
  remove 
  all 
  doubt, 
  and 
  aid 
  the 
  deception, 
  in 
  the 
  note 
  of 
  

   sale 
  of 
  the 
  patent 
  to 
  Armistead, 
  it 
  reads, 
  for 
  " 
  Genuine 
  Dur- 
  

   ham 
  Smoking 
  Tobacco." 
  Thus 
  the 
  language, 
  to 
  this 
  extent, 
  of 
  

   the 
  labels 
  is 
  identical. 
  Now, 
  as 
  to 
  the 
  symbols 
  or 
  devices, 
  

   one 
  is 
  the 
  side 
  view 
  of 
  the 
  Durham 
  bull 
  ; 
  the 
  other, 
  that 
  of 
  

   his 
  head, 
  on 
  a 
  medallion. 
  The 
  one 
  symbolizes, 
  by 
  a 
  part, 
  the 
  

   name 
  " 
  Durham 
  " 
  as 
  effectually 
  as 
  the 
  other 
  does 
  by 
  the 
  whole. 
  

   The 
  color 
  of 
  the 
  paper 
  is 
  also 
  the 
  same. 
  Whether 
  this 
  simu- 
  

   lation 
  be 
  the 
  product 
  of 
  accident 
  or 
  design, 
  does 
  not 
  matter. 
  

   It 
  is 
  the 
  province 
  of 
  this 
  court 
  to 
  suppress 
  it 
  in 
  either 
  case. 
  

   It 
  is 
  a 
  little 
  curious, 
  however, 
  to 
  note 
  that 
  Wright's 
  first 
  

   label, 
  at 
  Liberty 
  or 
  in 
  Bedford, 
  was 
  wholly 
  different, 
  and 
  that, 
  

   after 
  his 
  son 
  had 
  seen 
  plaintiff's 
  trade-mark 
  in 
  Kentucky, 
  and 
  

   after 
  his 
  return 
  to 
  his 
  father, 
  the 
  present 
  trade-mark, 
  as 
  

   transferred 
  to 
  the 
  defendant, 
  w'as 
  adopted 
  by 
  Wright. 
  

  

  The 
  third 
  and.last 
  ground 
  of 
  defense 
  is 
  that 
  the 
  plaintiffs 
  

   have 
  forfeited 
  their 
  right 
  to 
  relief 
  in 
  this 
  court 
  by 
  reason 
  of 
  

   their 
  false 
  and 
  fraudulent 
  pretensions. 
  This 
  is 
  upon 
  the 
  

   ancient 
  and 
  familiar 
  principle 
  that 
  those 
  v\ho 
  do 
  iniquity 
  

   must 
  not 
  ask 
  ncr 
  expect 
  equity. 
  It 
  is 
  worthy 
  of 
  all 
  acceptaton. 
  

   It 
  is 
  a 
  hoary 
  maxim, 
  hallowed 
  by 
  its 
  age, 
  and, 
  unlike 
  some 
  

   other 
  equally 
  sacred 
  antiquities, 
  it 
  is 
  as 
  yet 
  unassailed 
  by 
  

   the 
  spirit 
  of 
  change 
  or 
  reckless 
  progress. 
  I 
  adhere 
  to 
  it. 
  But 
  

   the 
  charges 
  are 
  serious 
  and 
  demand 
  investigation. 
  

  

  