BEWARE OF COUNTERFEITS Part 4

Digger Odell Publications © 2006

 

In the previous part of this series, we saw how the death of a proprietor often lead to a struggle for control of a business.  In this case, the sale of the product was enough to trigger a struggle that involved many players and lasted many years. 

 The Drug Trade

The medicine business had a tiered structure.  At the bottom, was the local retail druggist who had the closest connection with the public but had the least ability to bring a new brand to market.  The day to day operation of a drug store was time consuming and required full attention, if one was to be successful.  Every town in America had one or more of these establishments.

 Some druggists operated both retail and wholesale businesses.  These proprietors had a successful product, which enabled them to enter the wholesale market or, they became agents for successful products which they in turn sold wholesale to other retailers.  The well-known patent medicine companies such as Dr. Jayne, who marketed his line of family medicines, Dr. Kilmer with his Swamproot or, James Ayers with his Cherry Pectoral, all began as retailers and built their business into a wholesale operation.

Then there were the wholesale druggists.  Setting up such a business required a substantial investment and often involved multiple partners, each bringing their own resources to the enterprise.  The wholesalers supplied the trade.  They also could make or break a brand and bore the advertising costs, supported traveling salesmen, operated manufactories where products were made, packaged and distributed to a geographically dispersed base. 

 The growth of the wholesale drug business played out over several decades with major companies being firmly established by the late 1840s.   Fueled by improved means of transportation – canals, fledging railroads and improved roads - the dominant players eventually divided into three main camps: those that were engaged in the questionable patent medicine trade; those that were legitimate chemical or pharmaceutical companies; and those that were some combination of both.  It was from these groups that many of today’s major players in the pharmaceutical industry emerged. Companies with names like Miles Laboratories, Park Davis and Merck, were part of this evolution.

 The 1830s was a time when an individual, a retailer, such as Dr. Wm. Swaim of Philadelphia or the Hart’s in New York, could dominate the national scene.  This was true in part because the United States was only half its present size and the wholesale drug infrastructure was in its infancy. The expense of bringing a new medicine to market was the greatest limiting factor in its distribution.  For this reason, it was rare to find a proprietor such as Dr. David Jayne of Philadelphia or James Ayer of Lowell, Massachusetts with the resources and skills to market their own line of products to national prominence.  Both the former examples started prior to the solidification of the wholesale trade, and both were exceptional men in business.  Most patent medicine business was regional and for that reason, large numbers of patent medicine bottles are relatively rare – never having been widely distributed.

 Major wholesalers were located in the largest cities such as those in New York,  Philadelphia and Boston. They needed contacts in cities, towns and villages across the country.  One way this was accomplished was by the use of traveling sales persons, who would visit the local druggists or local wholesalers, to whom they brought samples, displays and advertising materials. Another method was to create demand by newspaper or broadside advertising.  In smaller cities, wholesale and retail druggists vied for position as agents of up and coming brands.  If the demand for a product was large, then their might be multiple agents for a single product in a single city - especially cities like New York or Philadelphia which were the seats of power. Occasionally, talented or corrupt agents miraculously ended up as proprietors, sometimes by use of devious means. Which is where our story begins.

 Dr. Wistar’s Balsam of Wild Cherry

 Henry Wistar

According to court records, sworn to by Seth W. Fowle, a retail druggist of Boston, Massachusetts, it was one Henry Wistar, a doctor from Virginia, who invented the recipe for Wistar’s Balsam of Wild Cherry.  Cecil Munsey, the well-known bottle and glass expert, has suggested that Wistar was related to the famous glasshouse Wistar family.  Very little evidence of who Henry Wistar was can be found.  Fowle repeatedly said in advertisements the Balsam was invented in 1838.

 Williams & Co

About 1841, Lewis Williams, a retail druggist in Philadelphia supposedly purchased the recipe from Henry Wistar and marketed the Balsam of Wild Cherry under the company name of Williams & Co.  It is very unlikely that Williams, who never achieved any great fame or fortune, was able to accomplish the bringing to market of this product by himself or with his own resources. Williams and his investors recruited agents all over the country, as far West as Cincinnati, building the business to the wholesale level. He manufactured the medicine until May 20, 1844, when for reasons unknown; he sold the rights to market it “to many states and the Eastern part of Pennsylvania”, to a man from Rochester, New York, one Issac Butts.

 

One of Wistar's Balsam of Wild Cherry Bottles used by Isaac Butts which had his initials embossed on the Shoulder

 Isaac Butts

Butts was a sharp businessman, who probably with help, groomed Wistar’s medicine and set the stage for its place in the national market.  It was Butts who designed and registered the label for the Balsam with the Copyright Office on July 25 of 1844.  It was Butts who designed and developed the unique eight-sided bottle stamped with his initials.  It was Butts who cleverly marketed the Balsam with his labels, wrappers and bottles. And then on March 1, 1845 only nine months after he purchased it, again for unknown reasons, he sold the rights to sell the Balsam in the Eastern states to Seth W. Fowle, of Boston.  Butts, made a handsome profit from flipping the medicine - $25,000, the greatest part of which he invested in telegraph stock in the Rochester Union, which appreciated so rapidly that he quickly retired with about a million and a half dollars.  He purchased large tracts of land in the area and businesses in Rochester and settled down to sell, patent medicines, which after all had made him rich.

Seth W. Fowle

Seth W. Fowle, young and if not as talented as Butts at making money, was blessed with a focus which enabled him to do what he did quite well.  Wistar’s Balsam of Wild Cherry became his bread and butter and eventually enabled him to finance the purchase of at least one other successful national brand, Oxygenated Bitters.  For much of his early career he defended himself from counterfeiters and others who attempted to horn in on his rightful purchase of the Balsam.

The Above Label was Registered by Isaac Butts in 1844

Now Fowle purchased from Butts all the “apparatus and appurtenances used in manufacturing the medicine, and all stereotype plates, pamphlets and bottle moulds used in vending the same.” This included Butt’s advertisements, wrappers and labels. What Fowle did not purchase and could not purchase was the unrestrained ability to market the medicine wherever he chose.  This Butts could not convey to him because he did not possess those rights. This begs the question who exactly owned the right to sell the medicine in the “West?”  Did the Williams & Co. retain those rights?  Did they sell them to someone else?  There is no direct evidence to tell but, in 1843, prior to the sale by Williams & Co. to Isaac Butts, the “general agents for the Western states” was the firm of Sanford and Park. 

Sanford & Park

Benjamin F. Sanford, born in Camden, Oneida County, New York, came to Cincinnati about 1840 and joined John D. Park in the patent drug business. They were retail druggists with a store at the corner of Fourth and Walnut downtown. Over the eight years that the partnership lasted, they sought out Eastern brands for which they became agents.  One of those brands was Wistar’s Balsam of Wild Cherry. About 1843, prior to the Butt’s purchase, they marketed their own version of the Balsam at least as far east as Western Pennsylvania.

Two variants of the Wistar's Sanford and Park Used.  The Bottle on the Left has the Initials SP on the Shoulder.  The one on the Right has Sandford & Park, Cincinnati Embossed

Sanford, left the business in the beginning of 1849 and by 1850 pursued other business interests.  He was not very successful and lost much of the money had gained in the dissolution of the Sanford & Park concern. 

Sanford and Park had their own local counterfeiters to deal with.  In 1845, Norman T. Winans, and his brother were operative chemists and manufacturing druggists.  The next year, they merged with Dion Birney and David B. Birney and cooked up a scheme to market, “Winan’s Balsam of Wild Cherry”, it was put up in an eight-sided bottle and unless one looked carefully, it would be mistaken for a bottle of Wistar’s Balsam.

Who’s Medicine is it Anyway?

By the time Fowle purchased the rights to distribute the medicine in the Eastern states, he was already being undermined by Sanford & Park.  L. S. Comstock & Co., who long had a relationship with the Cincinnati company as his Western agents, returned a favor and offered Sanford and Park’s Balsam for sale in New York City.

Perhaps the savvy Isaac Butts sensed the coming difficulties and exited quickly to avoid what seemed like trouble.  Or maybe Butts knew something he did not tell the young and inexperienced Fowle. Trouble came quickly. 

All versions of the Wistar bottles, except those of the Sanford and Park Company, have Philadelphia embossed on the bottle.  This is interesting since the medicine did not originate in Philadelphia and neither of the purchasers were from that City. 

 In what was to become part of case law, Fowle, in November of 1847, filed an injunction to stop William W. Spear [sic] who counterfeited the Balsam sometime between 1845-1846 and sold it in bottles with wrappers and labels identical to those Fowle had purchased from Butts. Fowle brought to court, an example of his own bottle, his advertising, his wrappers and labels and also an example of Spear’s Balsam.  Fowle’s bottle, had the “two letters ‘I.B” embossed while the “bottle of the defendant was identical except Spear had substitutedW. & Co.’ ”

Things did not go as Fowle hoped they would.  First, Spear who is identified only as a resident of Pennsylvania, did not reply to the injunction, submitted no rebuttal nor likely even attended the hearing. The court, dismissed Fowle’s puffery of the medicine and of his reputed claims said, “Is there any case in which a court of equity has interfered to protect a quack medicine?”

One justice observed and another concurred, “This claim to protection of mere names is of recent origin, and may be traced to the protection afforded in England to persons who have served apprenticeships before they are permitted to work at a trade.  It will not be extended here so as to protect a useless compound, by protecting the shape of the bottles, and any designation that may be used to sell articles not clearly of a useful nature.

Now at that time, The Copyright Office had not established the registration of trademarks, that would come about in 1876.  Legal precedent had been set that “though you sell your own goods, you cannot use wrappers resembling that of another person, and thus represent them as his.

The court after a lengthy discussion of what was meant by a ‘quack medicine’ dismissed Fowle’s petition which must have been a crushing disappointment for him.  It is interesting that Spear was, by the account of the court record, using bottles with the initials of Williams & Co.  No such bottles, to my knowledge have been found to date. Butts was the brains behind the branding of the product not Williams. There are many references in Fowle’s advertising that the Balsam was ‘counterfeited in large number’ in Philadelphia.  Was Williams in collusion with Spears?  Just who was Wm. S. Spear?

The Bottles used by Spear has WMS embossed on the shoulder

Wm S. Spear

Spear advertised for only a very short period in 1848, about one year after the court battle, perhaps simply to rub Fowle’s face in it. His ad listed Wm. S. Spear (Not Wm. W. as in the court record), at 145 Vine and at 21 Minor St. in Philadelphia.  A check or the City Directories for 1840 and 1853 show no listing for him as a druggist or patent medicine maker.  In his ad Spear made several interesting statements. First, obviously, he claimed, “the only genuine ‘Dr. Wistar’s Balsam of Wild Cherry’, has the written signature of the General Agent, W. M. Spear on the outside wrapper. He did not allege to be the proprietor. He did maintain that he was in possession of the original recipe.  Secondly, he stated, “The public are most solemnly cautioned against purchasing certain vile nostrums called, “Dr. Wistar’s Balsam of Wild Cherry.” Signed “ I. Butts;” also, another signed “Sanford & Park” – they being fictitious and deceptions upon the public.” Thirdly, he said, “The genuine Balsam is put up in bottles, with the words – ‘Dr. Wistar’s Balsam of Wild Cherry, Philadelphia,’ blown in the glass.” Lastly, the agents he listed include some famous names such as: T. W Dyott & Sons of Philadelphia, Rushton, Clark & Co. in New York, Charles Dyer, Providence, Mrs. E. Kidder, Boston, J. H. Callan, Washington, J. L. Kidwell, Georgetown and several dozen others.  These were honorable firms and who would not knowingly buy and sell medicines they knew to be forged. Spear announced T. W. Dyott & Sons as Wholesale Furnishing Agents for: New York, New England State, Virginia, North Carolina, South Carolina and Georgia also for the interior of Pennsylvania. This conspiracy between Spear and Williams would have required both money and expertise. Perhaps lacking both it was short-lived. 

September 1848

In February of 1849, John D. Park answered Wm. Spear in an ad of his own in the Erie Pennsylvania Observer, “Beware of a base counterfeit of Wistar’s Balsam of Wild Cherry, signed by one Wm. Spear, who, in order to palm his vile imitation upon the public, has obtained a fac simile of our bottle, and copied out label of directions verbatim, substituting his own name for that of Henry Wistar M. D. which is found on the genuine.” 

Crying Fowle

In March of 1847, William H. Millett was arrested in New York on a complaint from Seth W. Fowle for counterfeiting Wistar’s Balsam of Wild Cherry.  Millett was held to bail.  Fowle told the authorities that in 1844 he had purchased the right to compose and vend the medicine and that in pursuit of the business connected with it he had expended the sum of $50,000.

Then in October 1847, one month prior to seeking the injunction against Spear, Fowle warned the public of “many unprincipled counterfeiters and imitators, trying to palm off spurious mixtures, of similar name and appearance, for the genuine. Balsam.  Some are called ‘Syrup of Wild Cherry,’ ‘Balsam of Spikenard,’ ‘Wild Cherry Comfrey, &c.  Another, ‘Wester’s Balsam of Wild Cherry,’ misspelling the name, and forging certificates to resemble those of the true Balsam.”  He further said, “the genuine Balsam is put up in bottles, with the words, ‘Dr. Wistar’s Balsam of Wild Cherry, Phila,’ blown in the glass.” As added protection, he announced the label had the signature of  H. Wistar, M.D. and a new wrapper copyright secured in 1844 with the signature of I. Butts.

Scare Flared Lip Variant

Fowle considered Dr. Swayne’s Syrup of Wild Cherry to be a Wistar imitator and in an 1848 ad he said, “Be not deceived with quack nostrums, or any imitations of this invaluable medicine.  An individual at Charleston, South Carolina, recently purchased four bottles of Swayne’s Syrup – one of the most celebrated physicians in the city told the deceived patient he must send that article back and exchange it for Dr. Wistar’s Balsam of Wild Cherry.

Bottle Used by Seth Fowle with the H. Wistar Signature.

By the time the court ruled, Fowle was faced with formidable competitors on all sides.  William Spear did not advertise after 1848, but in December of 1849 Fowle complained, Wistar’s Balsam “has been extensively counterfeited in Philadelphia, and some thousand bottles of the spurious imitation thrown into the market and extensively circulated.”; and again in 1852, “there will be and now are, found those so villainously wicked as to concoct a spurious, and perhaps poisonous mixture, and try to palm it off as the genuine Balsam.  We raise no false alarm.  We advise the public of these schemes, that their health may not be trifled with, nor ourselves plundered of our just rights.

For many years, Fowle spend a large portion of his advertising dollars exposing the trespassers. In order to sell the Balsam, he recruited one of the largest wholesale druggists in New York, A. B. & D. Sands to be general agents and implied it was for sale by his agents everywhere.  Eventually he sharpened his message and emphasized the lineage, his was ‘the genuine’ and had the ‘written signature of Isaac Butts’ and because it was ‘originally put up by Williams & Co.’ was now prepared and sold wholesale and retail only by him. This, he repeated again and again throughout the 1850s.

Barnes & Park

Back in Cincinnati, John D. Park found it difficult going it alone.  He sought a new partner in the person of one Demas S. Barnes, a patent medicine man in New York, and together they formed a new firm, Barnes and Park, to sell both wine and medicine. They leased a spacious corner store at 304 Broadway in New York City for an annual fee of $1500.00 in September 1855.  John D. Park supplied Ohio Catawba wine and some of his medicines for the firm. Park remained in Cincinnati and never operated out of the New York store.

By December of 1855, with their vast experience and wealth of business connections, they advertised themselves as agents for well over one hundred brands, including all the big name medicines: Jayne’s, Kennedy’s, Hostetter’s, Houghton’s, McClintock’s, Radway’s, Merchant’s, Lyon’s, and even Wistar’s. Top billing was given to ‘Park’s Balsam of Wild Cherry and Tar’, the phoenix of the former Sanford and Park Wistar’s Balsam. Barnes and Park billed themselves as, ‘Dealers in all genuine Family Medicines.” They advertised the Balsam for only one year, its sales not sufficient to support the expense. They introduced several other medicines using Park’s name, but none caught the public’s attention.  After that, Park abandoned, at least temporarily, the use of the Wistar name.  Barnes and Park probably made some kind of deal with Seth Fowle & Co. because in April of 1860, Fowle advertised, “To avoid counterfeits, take only that with the printed name of the proprietors, ‘Seth W. Fowle & Co.,’ Boston, on the outer wrapper,” then listed Barnes and Park as one of the agents for the sale of his medicine. The partnership was relatively short-lived and ended unhappily judging from what happened next.

Demas Barns and John Park parted ways on January 1, 1861, Barnes had a new partner and a new firm called, “D. S. Barnes”.  Park was once again without a partner.  The separation must have been difficult.  In March of 1862 Barnes ran the following:

 

CAUTION TO DRUGGISTS.

Beware of counterfeit “MEXICAN MUSTANG LINIMENT.”  The genuine is wrapped in fine steel place engravings, with the words “Mexican Mustang Liniment: in a circle surrounding a burning volcano, &c., and “D. S. Barnes” blown in the bottle.

There has been offered for sale, by one John D. Park, an article in general design quite the same, but executed on common stone plate, with the words, “A. G. Bragg & Co.” in the top of the circle, the word “Mexican” underneath, small and obscured by the smoke of the volcano, and the name, D. S. Barnes, emitted from the bottle.

To manufacture or sell a counterfeit trademark is a criminal offence, and the undersigned will strictly enforce his right civilly and criminally:  Information in regard to the whereabouts of the said counterfeit Liniment will be thankfully received.

John D. Park's Bottle Circa 1865-1875

Once his partnership with Barnes was dissolved, Park took to counterfeiting Wistar’s Balsam once again.  Whatever deal there had been with Fowle was off.  Park’s bottles of the 1860-1870s, had the words, “Dr. Wistar’s Balsam of Wild Cherry, John D. Park, Cincinnati, O.” blown in the glass. But it was too little too late.  Fowle’s diligence captured the market. He even advertised in Park’s territory, Chicago and beyond. John D. Park & Sons stopped making the brand sometime in the early 1870s.  By the mid 1870s, Fowle’s (now Seth W. Fowle and Sons) more than twenty year battle to be sole proprietor of the Genuine Wistar’s Balsam of Wild Cherry, was won.

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