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![handle is hein.slavery/ssactsengr0823 and id is 1 raw text is: CARTIER V. CARLILE
[292] CARTIER V. CARLILE. March 5, 6, 7, 1862.
A Defendant is liable in equity to account for the profits made by the user of a
Plaintiff's trade mark, though, at the. time of the user, he may have beeh ignorant
of the rights and of the existence of the Plaintiff, and notwithstanding' that, to
entitle him to recover damages at law, it may be necessary to prove a scienter.
The object of this suit was to restrain the user of a trade mark on cotton labels,
and for an account of cotton sold with such labels.
The Plaintiff Cartier was a cotton manufacturer in Paris, carrying on trade under
the style of Cartier, Bresson Brothers. The firm had been accustomed to manu-
facture embroidery cotton, which was- called cross cotton, from the labels being in
the form of a cross, or having a cross as a device thereon. The labels (as described
by the bill) were on a colored ground, with figures, letters and words and the mark
of a cross printed thereon in yellow or gold color. The letters on the left and the
figures on the right side of the upper part of the cross on such labels indicated the
degree of fineness of the cotton. The letters C. B., placed the one on the left and
the other on the right of the lower part of the cross on the small labels, indicated
Cartier Bresson, the name of the firi under which the Plaintiff carried on business,
and the words & Broder A la Croix, at the lower part of the small labels, were
intended to designate the character of the cotton. It was alleged that the object of
the whole of the label was to make the cotton manufactured by the Plaintiff easily
distinguishable from that manufactured by others.
There was a considerable sale of the Plaintiff's cotton in England. It appeared
that the Defendants Carlile, Sons & Co. had manufactured and sold cotton with [293]
labels similar to those of the Plaintiff, changing the C. B. to C. S., but according to
the evidence they had done so in ignorance of the Plaintiff's rights.
As to this, the Defendants in their answer stated as follows:-
We have, in the course of our business, manufactured various sorts of linen and
cotton threads for sewing, embroidery and flowering purposes. These have, at
different times, been made up with various labels, tickets and wrappers, the
embroidery cotton in particular, sometimes having labels on the skeins, dozen
pounds or grosses and sometimes not, and sometimes having wrappers without
labels, but having devices printed on such wrappers, and sometimes without either
labels or devices, the mode of doing up such cotton and the use of labels being
dependent upon the requirements of the trade and the orders of our customers. It
is in the ordinary course of trade for us and other manufacturers of the same kind
of goods to receive orders to make up goods according to sample. The samples sent
are generally accompanied by labels of various kinds, with or without devices or
names, as it may happen. When we know or have reason to believe that the devices
or names so sent to us are the property of some person other than the person sending
us the order, our invariable practice has been and is, at once to refuse to execute the
order. We first heard of, saw and knew of labels for embroidery cotton having the
device or cross in the spring or summer of 1855, when we received an order from
Robert Barbour & Brothers, Manchester, for embroidery cotton according to samples,
&c., &c., &c. Both sets of labels bore the device of a cross and were similar to the
labels described in the Plaintiff's bill. We executed the order so given us; [294] we
did not then know that the Plaintiff claimed any property in such labels, we not
having any knowledge of the Plaintiff. We believe the labels so sent to us were
common trade marks, open to the use of all houses in the trade, and that the device
of a cross was a device which might be used by anyone, either with or without initial
letters or other inscription in connexion therewith, and believing this, we, from the
time of receiving such samples, until the month of June 1861, adopted and made use
of such labels, substituting thereon the initials C. J. and C. S. & Co., or any other
letters that were asked for by the persons sending in orders, for the initial of the
sample label so sent to us. We made use of such labels in connection with the cotton
so manufactured by us, to distinguish such cotton from other sorts of cotton also
manufactured by us, and we manufactured the cotton to which we attached such
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