[409] "And whereas, Thomas Henry Cooper, being admitted as the actual owner of the said schooner W. P. Sayward,' by order of the district court, to interpose as claimant, did, in order to prevent the execution of said decree, take an appeal to this Honorable Court on the 26th day of April, 1888, and docketed the same on the 30th day of October, 1888, under No. 1037; "And whereas, all matters of fact herein before recited and alleged, save and except those of which this Honorable Court takes judicial notice, appear by the record and proceedings of the District Court of the United States in and for the Territory of Alaska; the said killing of seal done on the high seas | court to be distributed according to law, costs "And whereas, after said assertion of jurisdiction to condemn and forfeit said vessel, and before decree or sentence, the claimant did move the court to arrest the decree of forfeit ure, and among other grounds did distinctly set up that the court had no jurisdiction over the subject matter of the cause, as shown by libelant's own testimony as to place of offense and seizure, yet the said court did, nevertheless, in contempt of the authority of the United States and in violation of the laws of the United States and in violation of the laws of nations, and to the manifest danger of the peaceful relations of the two countries, assert and attempt to exercise jurisdiction in the premises, and on the nineteenth day of September, 1887, did make and enter a pretended decree of forfeiture to the United States of said vessel, her tackle, apparel, boats, cargo and furniture, and direct that unless an appeal be taken the usual writ of venditioni exponas be issued to the marshal commanding him to sell all said property and bring the proceeds into peal given to this court from the District of "And whereas, the said Thomas Henry [410 Wherefore, the said Thomas Henry Cooper, [411 the aid of this Honorable Court most respectfully requesting, prays remedy by writ of prohibition to be issued out of this Honorable Court to the judge of the District Court of the United States in and for the Territory of Alaska to be directed, to prohibit him from holding the plea aforesaid, the premises aforesaid, any wise concerning further before him, and to prohibit him from in any manner enforcing the said decree or sentence, or from treating the said decree as a valid sentence, for any purpose, or from taking any steps whatsoever in the cause aforesaid as to said decree or any matter or thing remaining to be done in consequence of said decree, and prohibiting him, the said judge, from making or entering any order, judgment or decree in and about the certain stipulation exacted and required in the course of said proceedings, and generally from the further exercise of jurisdiction in said cause, or the enforc [412] ing any order, judgment or decree made under | Carlisle and Charles Strauss, in support "The supreme court shall have power to issue writs of prohibition to the district courts when proceeding as courts of admiralty and maritime jurisdiction." Act of September 24, 1789, § 13 (1 U. S. Stat. at L. 80); U. S. Rev. Stat. § 688. If the lowest of the courts of the United States could usurp jurisdiction over the vessels of a friendly foreign nation, by our Constitution the executive would be powerless in almost every such case to meet the just complaint of the foreign government. For such a case it was eminently proper that the highest tribunal of the United States should be express At the same time that the above petition was presented Mr. Calderon Carlisle, on behalf of Sir John Thompson, K. C. M. G., Her Brittanic Majesty's Attorney-General of Canada, presented to the court a suggestion for a writ of prohibition which was in all respects identically clothed with authority, by a process well with the above petition except as to the party presenting it and as to its suggestion, which was as follows: "Wherefore, the said Sir John Thompson, K. C. M. G., Her Brittanic Majesty's AttorneyGeneral of Canada, the aid of this Honorable Court most respectfully requesting, for said Thomas Henry Cooper, submits to this Honorable Court that a writ of prohibition ought to be issued out of this Honorable Court to the judge of the District Court of the United States in and for the Territory of Alaska to be directed, to prohibit him from holding the plea aforesaid, the premises aforesaid, anywise concerning further before him, and to prohibit him from in any manner enforcing the decree or sentence, or from treating the said decree as a valid sentence, for any purpose, or from taking any steps whatsoever in the cause aforesaid as to said decree or any matter or thing remaining to be done in consequence of said decree, and prohibiting him, the said judge, from making or entering any order, judgment or decree in and about the certain stipulation exacted and required in the course of said proceedings, and generally from the further exercise of jurisdiction in said cause, or the enforcing any order, judgment or decree made under color thereof. And the said Sir John Thompson, K. C. M. G., Her Brittanic Majesty's Attorney-General of Canada, most respectfully informs this Honorable Court that the fact that this his suggestion is presented with the knowledge and approval of the imperial government of Great Britain will be brought to the attention of the court by counsel duly thereunto authorized by Her Brittanic Majesty's representative in the United States. "Calderon Carlisle, "Counsel for Sir John Thompson, K. C. M. G., Her Brittanic Majesty's Attorney-General of Canada. "I have read the foregoing suggestion by me subscribed, and the facts therein stated are true to the best of my knowledge and belief. "Calderon Carlisle. "Subscribed and sworn to before me this 12th day of January, 1891. "(Seal) Oscar Luckett, Notary Public." Time was allowed the Attorney-General to prepare an argument in opposition to the motion, at the expiration of which the parties appeared and counsel were heard. Messrs. Joseph H. Choate, Calderon known to the common law, to restrain the district courts from proceeding as courts of admiralty and maritime jurisdiction in cases where they had no jurisdiction or were exceeding their jurisdiction. United States v. Peters, 3 U. S. 3 Dall. 121, (1:535); Ex parte Pennsylvania, 109 U. S. 174 (27:894). The power of Congress to vest judicial power in courts created in territories is unlimited both as to the extent and the mode of its exercise. American Ins. Co. v. 356 Bales of Cotton, 26 U. S. 1 Pet. 542 (7:255). See Clinton v. Englebrecht, 80 U. S. 13 Wall. 441 (20:660). The district and court created for Alaska in their organization and character are indistinguishable from the judicial districts and the district courts created by the original Judiciary Act of 1789. Act of May 17, 1884, § 1 (23 Stat. at L. 24). Messrs. W. H. H. Miller, Atty-Gen., and William H. Taft, Solicitor-Gen., for the United States, in opposition to the motion: This court has no power to issue a writ of prohibition to the District Court of Alaska. Section 688, Rev. Stat., when its origin and history are considered, cannot refer in the expression "district courts" to any courts of that name except such as are established by Congress under the third article of the Constitution as courts of the United States charged with the exercise of the judicial power therein conferred. The District Court of Alaska is not such a court. Act of May 17, 1884, § 3 (23 Stat. at L. 24). See American Ins. Co. v. 356 Bales of Cotton, 26 U. S. 1 Pet. 511 (7:242); Clinton v. Englebrecht. 80 U. S. 13 Wall. 434-447 (20:659-662); The City of Panama, 101 U. S. 453-460 (25: Cl. 318. 1061-1064); McAllister v. United States, 22 Ct. The jurisdiction of this court in prohibition is an appellate jurisdiction. Marbury v. Madison, 5 U. S. 1 Cranch, 137 (2:60). This court can exercise no appellate jurisdiction unless conferred upon it by Act of Congress. United States v. Boisdoré, 49 U. S. 8 How. 121 (12:1012); United States v. Cox, 36 U. S. U. S. 6 Pet. 470 (8:467); Ex parte Dorr, 44 U. S. 11 Pet. 162 (9:671); United States v. Nourse, 31 3 How. 104 (11:514). The jurisdiction of this court in prohibition is specific and limited. Ex parte Graham, 77 U. S. 10 Wall. 541, 542 (19:981, 982). See also Phillips, Manual of Appellate jurisdiction of this character over Act of May 17, 1884, § 7 (23 Stat. at L. 26). The question of jurisdiction cannot be raised First. The face of the proceedings shows Camden v. Home, 4 T. R. 397; Full v. Second. Evidence shows seal killing within (a). Objection to jurisdiction was waived by appearance. See Bobyshall v. Oppenheimer, 4 Wash. C. (b). But even if the seizure was illegal and a Gelston v. Hoyt, 16 U. S. 3 Wheat. 311 (c). But even if it be admitted that this was Rose v. Himely, 8 U. S. 4 Cranch, 241 (2:608); The question of jurisdiction here raised is Foster v. Neilson, 27 U. S. 2 Pet.309 (7:434); Fuller, Ch. J.: This is an application for leave to file a peti- We are of opinion upon the preliminary (Counsel having conferred, the second Mon- LAWRENCE TENNESSEE MANUFACTURING COM- v. MANUFACTURING COM- (See S. C. Reporter's ed. 537-552.) 1. The office of a trade-mark is to point out dis- only prima facie evidence that the person procur- The exclusive use of words designed to deceive One has no right to appropriate as a trade-mark employ with equal truth, and therefore have an No property can be acquired in any word, mark [414] [537] to which it is affixed; or, in other words, to give an injunction and an account of profits. Af notice who was the producer. 2. An exclusive right to the use of words, letters or symbols, to indicate merely the quality of the goods to which they are affixed, cannot be acquired. 8. If the primary object of the mark be to indicate origin or ownership, the mere fact that the also become indicative of quality, is not of itself sufficient to debar the owner from protection and article has obtained such a wide sale that it has make it the common property of the trade. 4. If the device or symbol was not adopted for the purpose of indicating origin, manufacture or ownership, but was placed upon the articles to denote class, grade, style or quality, it cannot be upheld as technically a trade-mark. 5. The letters "LL" placed upon sheetings, which only indicate grade, class or quality, and not origiu, ownership or manufacture, cannot be upheld as a trade-mark. 6. Where defendant has been guilty of fraud on the public and on the plaintiff by using an important part of plaintiff's label in such a way and under such circumstances as to amount to a false representation and thereby intentionally and fraudulently selling its goods as those of the plaintiff, without plaintiff's consent or acquiescence, such conduct will in a proper case constitute ground for relief. or device which denotes merely the nature, kind or, quality of an article. Laughman v. Piper, 5 L. R. A. 599, 128 Pa. 1; Smith v. Walker, 57 Mich. 456; Alden v. Gross, 25 Mo. App. 123; Trask Fish Co. v. Wooster, 28 Mo. App. 408. Words descriptive of, and having relation to, a trade or business, cannot be seized and appropriated as a trade-mark. Koehler v. Sanders, 48 Hun, 48, 21 Abb. N. C. 95. Everyone is at liberty to affix to the product of his own manufacture any symbol or device not previously appropriated, which will distinguish it from articles of the same general nature manufactured or sold by others. Laughman v. Piper, 5 L. R. A. 599, 128 Pa. 1. When a man manufactures his goods at a particular place, he may use the name of that place in combination with other words as a trade-mark to distinguish the origin or ownership of his goods; and no other person will be permitted to use the name of the same place upon goods manufactured by him at another and different place. Gato v. El Modelo Cigar Mfg. Co. 6 L. R. A. 823, 25 Fla. 886. A manufacturer or trader can acquire an exclusive right to the use of a peculiar location of words and the general form of a label, although the words themselves could not make a valid trade-mark. Kinney Tobacco Co. v. Maller, 53 Hun, 340. Although the words "Warren Hose Supporter" would not alone constitute a valid trade-mark, they may do so in connection with a cut representing a supporter engaged with a stocking. Frost v. Rindskopf, 42 Fed. Rep. 408. Every manufacturer has the unquestionable right to distinguish the goods that he manufactures and sells by a peculiar label, symbol or trade-mark; and no other person has a right to adopt his label or trade-mark, or one so like his as to lead the public to suppose that the article to which it is affixed firmed. Statement by Mr. Chief Justice Fuller: which have been changed from time to time, is the manufacturer's. Gato v. El Modelo Cigar An inventor of a system of manufacturing gar- A label cannot be treated as a trade-mark where it does not indicate by what person the articles upon which it is used were made. Weener v. Brayton (Mass.) 8 L. R. A. 640. The use of a rose-colored capsule upon bottles of wine cannot be claimed as a trademark; nor can another be prevented from using them, where there is no attempt to deceive by labels or otherwise. Mumm v. Kirk, 40 Fed. Rep. 589. Rose and vanilla having been for many years well-known flavoring extracts, a person registering these words as a trade-mark for a food product cannot prevent other persons from flavoring food products with rose or vanilla or both, and describing them as so flavored. Clotworthy v. Schepp, Fed. Rep. 62. The words "Microbe Killer," being English words in common use, cannot be appropriated in their original meaning as a trade-mark. Alff v. Radam, 9 L. R. A. 145, 77 Tex. 530. There can be no exclusive right to the use of the word "Singer" as a trade-mark for sewing-machines manufactured upon the principles covered by the Singer patents, which have expired, or to the mode of construction, external shape, appearance and ornamentation of such machines manufactured while the patents were in force. Singer Mfg. Co. v. June Mfg. Co. 41 Fed. Rep. 208. A trade-mark cannot arise out of illustrations in a published book or story, but such illustrations must be protected by copyright. Munro v. Smith, 55 Hun, 419. every piece or bolt of such sheetings of said third general class made and sold by complainant during said period; " that said trade-mark was so adopted by plaintiff for the purpose of distinguishing sheetings of its manufacture of the third general class from similar goods manufactured by others; that in connection with the trade-mark, or substantive element of said label, under and in connection with which the trade reputation of plaintiff had been estab lished, plaintiff had used the words "Lawrence Mills," and the word "Sheetings," in different juxtapositions, 'and also at times a picture or representation of a bull's head, and at other times a picture or representation of a "bull rampant,' and in connection therewith and underneath the same, and in a separate position, has always used said capital letters "LL" as and for the purpose aforesaid; that plaintiff had earned and acquired a trade reputation of great value as manufacturers of sheetings under its trademark, with the result that sheetings of the third general class of plaintiff's manufacture had come to be universally known as "LL sheetings," "and sheetings so known, named and called for, import the excellent raw material, the method and care of manufacture, and the general guaranty of excellence and lasting quality for which your orator has a long, valuable and thoroughly established reputation as to all goods of its manufacture;' that since plaintiff became vested with the exclusive right to the use of the trade-mark, namely, from the first of January, 1884, to the present time, the defendant had been manufacturing and selling 539] large quantities of sheetings of said third gen A man cannot acquire the right of a trade-mark | in the use of his own name to the exclusion of the right of another person by the same name, and whose place of business is in the same place. Gato ▼. El Modelo Cigar Mfg. Co. 6 L. R. A. 823, 25 Fla. 886. The right which every person has to use his own name in the prosecution of his business can be limited or controlled only when such name has become the trade-mark or business sign of another, and is being used to deceive the public or defraud the person who made it valuable. Caswell v. Hazard, 121 N. Y. 484, affirming 50 Hun, 230. The right to a trade-mark is a property right, for the violation of which damages may be recovered in an action at law, and the continued violation be enjoined in equity. United States v. Steffens, 100 U. S. 82 (25: 550). The object of the trade-mark is to indicate, either by its own meaning or by association, the origin or ownership of the article to which it is applied. Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51 (25: 993). Directions, advertisements, notices, etc., constitute no part of a trade-mark. Candee v. Deere, 54 Ill. 462. At common law the exclusive right to the ordinary trade-mark grows out of its use, and not from its mere adoption. United States v. Steffens, 100 U. S. 82 (25: 550). The right to its use may be lawfully transferred with the business to which it is affixed. Kidd v. Johnson, 100 U. S. 617 (25: 769): Manhattan Medicine Co. v. Wood, 108 U. S. 218 (27: 706). A trade-mark which contains a misrepresentation to the public will not be protected. Hoxie v. Chaney, 3 New Eng. Rep. 714, 143 Mass. 592; Palmer v. Harris, 60 Pa. 156: Hobbs v. Francais, 19 How. Pr. 567; Wolfe v. Burke, 7 Lans. 151; Connell v. Reed, 128 Mass. 477; Manhattan Medicine Co. v. Wood, 108 eral class, upon which, and for the purpose of taking advantage of plaintiff's trade label, trademark and trade reputation, defendant had placed a stamp or label in imitation of the stamp or label of plaintiff, and so in imitation thereof as to tend to deceive the public, and had upon its said stamp or label on its sheetings printed or stamped the capital letters "LL, prominently and separately from the other parts of its label; that the acts and doings of the defendant tended to deceive the public and to constitute a fraud upon them as well as upon the plaintiff; and that the appropriation and wrongful use of the letters "LL" was for the purpose and with the tendency and effect of appropriating a part, at least, of the good-will and trade reputation of the plaintiff; wherefore plaintiff prays for an injunction and for an account of all gains and profits realized by defendant, and for damages. The answer admitted that in the trade of sheetings there were several recognized classes based upon the difference in weight of the goods per yard, and among them four classes. running two and, three, four and five yards to the pound; and that the products of different manufacturers, though coinciding in the standard of weight, differed in texture and durability. Defendant denied that either prior to 1870, or at any other time, plaintiff adopted and thereupon became duly vested with the exclusive right to use a label or trade-mark upon all goods of its manufacture coming within the third class, having as its substantive, distinctive and chief feature a symbol consisting of the capital letters "LL" prominently and U. 8. 218 (27: 706); Parlett v. Guggenheimer, 8 Cent.. Rep. 796, 67 Md. 542. Where parties claim rights acquired by advertising their wares under representations that are false, equity will not protect. Laird v. Wilder, 9Bush, 131; Helmbold v. Helmbold Mfg. Co. 53 How. Pr. 453; Seabury v. Grosvenor, 53 How. Pr. 192; Palmer v. Harris, 60 Pa. 156; Ellis v. Zeilin, 42 Ga. 91; Tallcot v. Moore, 6 Hun, 106; Blackwell v. Wright, 73 N. C. 310; Green v. Shepherd, 38 Scot. Jur. 523; Foot v. Lea, 13 Ir. Eq. 484. A trade-mark cannot be had in the form or color of a package or box (Ball v. Seigel, 3 West. Rep. 42, 116 Ill. 137; Enoch Morgan's Sons Co. v. Troxell, 89N. Y. 292; Moorman v. Hoge, 2 Sawy. 78; Harrington v. Libby, 14 Blatchf. 128); nor in the form, finish or appearance of goods. Browne, Tradem. § 605. A figure or a letter cannot, but a combination of either may be, appropriated as a trade-mark,—as 3214. American S. L. B. Co. v. Anthony, 2 New Eng. Rep. 630, 15 R. I. 338; Lawrence Mfg. Co. v. Lowell Hosiery Mills, 129 Mass. 325; Gillott v. Esterbrook, 48 N. Y. 374. The words "A. N. Hoxie's Mineral Soap," and "A. N. Hoxie's Pumice Soap," taken together, constitute a trade-mark, and may be assigned. Hoxie v. Chaney, 4 New Eng. Rep. 709, 143 Mass. 592; Kidd v. Johnson, 100 U. S. 617 (25: 769). Words merely designating the kind of business. as "patent roofing," cannot be appropriated (Fay v. Fay (N. J.) 4 Cent. Rep. 241); nor words which merely describe a quality, as "health preserving" (Ball v. Seigel, 3 West. Rep. 41, 116 Ill. 137; Gilman v. Hunnewell, 122 Mass. 139; Royal Baking Powder Co. v. Sherrell, 93 N. Y. 331; Larrabee v. Lewis, 67 Ga. 561: Upton, Tradem. 114; Browne, Tradem. 8$ 164, 657, 658); nor words merely describing and designating the place where a business is carried on, as "Tower Palace" (Armstrong v. Kleinhans, |