Radam v. Capital Microbe Destroyer CompanyThis is a suit by William Radam, the appellant, against J. J. Tobin and others, partners doing business under the firm name of the Capital Microbe Destroyer Company. Plaintiff alleged that he had discovered a valuable medicine possessing great curative properties, was manufacturing and selling it at large profits, and had given it the name of " Microbe Killer," and as such, with the trade-mark, labels, devices, and symbols adopted by plaintiff, it had become widely known; that defendants, with intent to defraud plaintiff and to deceive the public, have prepared for sale a medicine inferior to plaintiff's, similar in appearance, and put up in similar packages, with label, devices, and trade-mark in imitation of plaintiff's, which are calculated to deceive and do deceive the public into the belief that the same is the medicine of plaintiff; that defendants are selling their medicine by such counterfeiting, to plaintiff's damage twenty-nine thousand dollars. Prayer for temporary injunction, to be perpetuated on final hearing, and for judgment for alleged damages.
The answer of defendants denied all the allegations of the petition, and set up that Tobin had prepared a medicine for sale which he called the " Microbe Destroyer," a superior and different medicine to that of plaintiff, was selling the same under the firm name of the "Microbe Destroyer Company," but that plaintiff had no right to the exclusive use of the words " microbe killer"; that defendants' trade-mark is not in imitation of plaintiff's, and that there was no infringement a* alleged.
The case was regularly called for trial on the seventh day of May, 1888, the day set for trial, when plaintiff's demurrers were presented to the court. ... This motion was filed on the 8th of May, and on the same day another motion was filed to strikeout that part of the amended answer, denying the alleged partnership, and declaring that Tobin alone was the proprietor of the medicine and trade-mark set up by defendants, and that he alone constituted the Microbe Destroyer Company; and also to strike out that portion of Tobin's answer setting up that the two medical preparations of plaintiff and defendant were composed of different chemicals; that plaintiffs medicine was a well-known mixture, and had been used as a medicine long before plaintiff attempted to appropriate it; that he (defendant) used the words "microbe destroyer " to indicate the real character of his medicine, and not to imitate the name adopted by plaintiff; that he has used in the sale of his medicine jugs of all sizes and colors, because jugs are suited to the medicine and are cheaper than other vessels; that he has never represented to the public or any person that he was manufacturing or selling plaintiff's medicine, or a medicine in imitation of it, or authorized any other person to do so, but on the contrary, has always represented it Plaintiff's trade-mark and label is described in the first part of the opinion in the case of Alff & Co. v. Radam, 77 Tex. 530; 19 Am. St. Rep. 792.
Tobin's trade-mark is the words " Microbe Destroyer," and there is no symbol, picture, or illustration on the label. On the label used by Radam at the top are written the words: " Wm. Radam's Microbe Killer," in large letters, and under this the words " Germ, bacteria, or fungus destroyer." In the center of the label is the symbol or illustration, in the top of which is printed in capital letters "Wm. Radam's Microbe Killer," and in the lower part of it "Trade-mark." Under the picture are the words " Registered December 13,1887," and below this a caution is printed: "The genuineness of every jug is secured by trade-mark as above, and my name must be written on each label in that form." The name " Wm. Radam" is then written or printed below. On the left of the symbol, in a column about the size of an ordinary newspaper column, is printed " This is the invention of Wm. Radam, Austin, Texas." " It is the only microbe killer in the world," — all in capital letters. Then in the same column is further information about the medicine and its cures, and a warning to persons not to use the label or trade-mark. On the right side of the symbol, in a similar column, are printed instructions about how to use the medicine in different diseases, all signed by " Wm. Radam, Austin, Texas, U. S. A.," in printed capital letters. Exhibit B attached to plaintiff's petition shows no device or picture on the label used by the Microbe Destroyer Company,
The printed matter on the label is not divided into columns, but appears as follows: —
An unfailing remedy for consumption, catarrh, bronchitis. etc., etc.,
and all diseases arising from impurities of the blood.
Dose: Wineglassful three times a day, before eating, in a tumblerful of water.
Price $2.50 per gallon.
PREPARED BY THE Capital Microbe Destroyer Co., Ararat, Texas. Registered December 28, 1887. [Signed] Dr. J. J. Tobin, State Agent
Another copy is given of the label on exhibit B M used by the Microbe Destroyer Company; exactly like the above, except that it ends with the words " Austin, Texas." These labels used by the Microbe Destroyer-Company were of different colors, — blue, yellow, etc. Both parties put up their medicine in gray or brown one-gallon jugs, similar in appearance and bought in the market, and their respective labels and trade-marks were placed on the jugs....
The conclusions of the court were, "that there is a general similarity in shape and color of the jugs and those portions of the labels which indicate the properties and uses of the medicine between the goods '.of appellant and appellees as the same are offered for sale, but that the differences in the same are so readily perceptible and marked that a man of ordinary intelligence and care should not be misled thereby"; and " that appellees did not designedly or fraudulently adopt the use of gallon jugs, or imitate the trade-mark and labels, etc., of appellant." The court also added the following to his findings as the law of the case: " 1. That the appellant has the right to the exclusive use of his trade-mark, labels, symbols, etc.; 2. That there is no such imitation thereof by appellees as is calculated to deceive the public; 3. That there is no intentional wrong nor fraud on appellees' part; 4. That appellant take nothing by his suit, and that the injunction be denied; 5. That this is without prejudice to appellant's right to the exclusive right to make the preparation known as ' Microbe Killer,' if he has such right, which is not in any way involved in this suit." The American State reports: containing the cases of general value ..., Volume 26 - Page 783, 1892
WILLIAM RADAM DIES.
Was an Expert Florist and the Discoverer of a " Microbe Killer." 'William Radam, the discoverer of a " microbe killer," which bears his name, died suddenly of heart trouble yesterday at his home, 124 West Eightieth Street. He was born in Germany fifty-eight years ago, and came to this country when twenty-three years old.
He had been ill with consumption for some time, and in 1884 the doctors told
him he had no chance of recovery. His interest in botany and some experience as
a naturalist had led him some time before into an investigation of certain forms
of plant life, and the result of his experiments was the discovery in 1885 of
what he claimed to be a "microbe killer," to the use of which he attributed his
recovery from consumption. These he put in Gallon jugs for $3 and bottles for
$1. Factories for the making of the microbe killer were established in the
United States, England, and Australia, and from the sale he amassed a