Gruber Almanack Co. v. Swingley

Trade Name — Misrepresentations in Plaintiff's Publications Held to be Immaterial. In 1835 and annually thereafter one J. Gruber published an almanac called the Hagerstown Town and County Almanack which publication is now continued by the plaintiffs who are his descendants. Defendant in igos published an almanac called the “J. and C. Gruber’s Hagerstown Town and Country Almanack for the year 1906,” on the title page of which and elsewhere, the emblems, name, devices and general appearance of plaintiffs’ almanac were imitated in such a manner as to deceive the public and induce the belief that the defendant’s almanac was that of the plaintiffs. Upon a bill for an injunction to restrain this publication the defense relied on was that on the title page and elsewhere the plaintiff’s almanac contained such material false representations as deceived the public and disentitled the plaintiffs to relief in ' equity. The alleged false statements were that the almanac was printed and sold byj. Gruber at Hagerstown and was copyrighted by him, whereas J. Gruber was long since deceased, and that J. Gruber had in 1874 authorized the Gruber Almanac Company to publish the almanac. Held, that these statements, although not strictly true, are immaterial and not such misrepresentations as are calculated to deceive the public, and that the plaintiffs are entitled to an injunction restraining the imitation of their trade name. During the four years, from 1854 to 1858, John Gruber was too old and infirm to carry on the business, so he authorized William Stewart and Thomas G. Robertson to publish the almanack. The authorization was published on the second page of the almanack — e. g., the inside page of the outside cover. The bill shows that from this year, 1854, there was always a printed authorization of some one to publish the almanack; that is, for 'a period of fifty-two years, although the outside cover always contained the words “J. Gruber’s” Almanack and “Printed by John Gruber.” John Gruber died in 1858. From 1858 to 1866, the year of her death, the almanack was published by Catherine Gruber, his widow, under the business management of Thomas G. Robertson, a copy of the authority being printed in each and every issue of the almanack. The bill shows that from 1858 to the present da y, a period of forty-eight years, every almanack contained the statement that John Gruber was deceased and the publication was continued by members of his family. Catharine Gruber during this period took out a copyright in her own name éach year, though each almanack had a front and back cover precisely as Exhibit 1 and 2, and each contained the words “J. Gruber’s” Almanack and “Printed by John Gruber.” The bill alleges that the almanack was published by Catharine Gruber under the name of J. Gruber during all this time. From 1858, therefore, until the present time, a period of forty-eight years, the name “J. Gruber” and “John Gruber” has been a trade-name, adopted by his family, he being known to be deceased. On the death of Catharine Gruber, his widow, two of the children, M. L. and F. C. Gruber, continued the publication under the name of John Gruber, under the business management of Thomas S. Robertson, for the benefit of themselves and the other members of the family, whose names are not mentioned, and a printed copy of the authority appeared in each copy of the almanack. The same front and back outside covers were used. The copyright was taken out each year in the names of M. L. and F. C. Gruber. M. L: Gruber died in 1874. From 1874 to 1884, the almanack was published by the surviving members of the family of John Gruber, under his name. The notice signed by the members of the family is not set out in the bill, but from the 3d page of Exhibit 1 it is evident that they were F. C. Gruber W. L. May, as this notice is dated 1874. The notice to the trade is set out, and from this it appears that even in the notice the family signed themselves by their trade name “John Gruber,” the notice reading “we have authorized',' etc.; signed John Gruber; and from that time also they took out the copyright in the trade name “J. Gruber,” notice of which was printed on the front cover of every copy of the almanack, just as is found in Exhibit 1. This was thirty-two years ago. During the first ten years of this period, from 1874 to 1884, the family of John Gruber authorized M. A. Berry of Hagerstown to publish the almanack, and M. A. Berry associated with him Otho Swingley, the appellee in this case, as co-partner. In 1878 the almanack was pirated by one Caroline V. Robertson, and a bill was filed by M. A. Berry and Otho Swingley, co-partners, against her, for an injunction. The bill was demurred to but was overruled and the injunction granted, which decree was sustained by this Court in the case of Robertson v. Berry, 50 Md. 591. • At that time, i. e., 1878, John Gruber had been dead for twenty years as appears on the face of the bill, and the almanack for that year filed as an exhibit had the same front and back covers as now, with the same words “J. Gruber’s” almanack and “Printed by John Gruber” on the front cover. No point was made by Mr. S. Teackle Wallis, who tried the case for Mrs. Robertson, that there was any fraudulent misrepresentation, nor did any such point occur to the Court, at least so far as the opinion shows. The bill in that case alleged that the family of John Gruber, after his death, continued the publication of the almanack under the name of John Gruber, and this bill was sworn to by Otho Swingley, the appelle in this case. From 1884 to 1894 the condition was the same, except that Otho Swingley dropped out as one of the publishers, and M. A. Berry continued alone to publish under the authority of «the family of John Gruber. We call attention just at this point to the fact that the notice in 1884 is dated July, 1874, and as we will see the notice in 1895 to the Gruber Almanack Co. was dated July, 1874, and in Exhibit x the notice of 1906 is dated July, 1874. It is evident that the publisher simply took the old original notice of July, 1874, and filled it in with the name of the authorized publisher or licensee from year to year, without changing the date. This, of course, is erroneous and careless, but certainly immaterial. In 1894 the present appellants, who are alleged to be surviving members of the family of John Gruber, continued to print th'e almanack under the name of “John Gruber.” “John Gruber,” the trade name, which had been used since John Gruber’s death in 1858, but instead of authorizing a licensee, Wilfred H. McCardell, to do the publishing for them himself, associated him with them under the name of the Gruber Almanack Co., so that since 1894, though the family published the almanack under the name of “J. Gruber,” and “John Gruber,” as heretofore, making no change in this particular, they have associated their business manager with them under the name of the Gruber Almanack Co., and the name was also printed on the front outside cover as the company to which orders were to be sent. The copyright was yearly procured in the name of “J. Gruber,” as heretofore, and so stated on the front outside cover. The history of the almanack prior to 1835 is stated in the almanack issued by the appellee, on the page just inside of the back outside cover. From this it appears that the first publication of an almanack by John Gruber was in 1797, but it appeared only in the German language until 1822. Its present name was first adopted in 1835, as stated in the bill. John Gruber, therefore, began to publish an almanack one hundred and nine years ago. This case is really concluded by the decision in Robertson v. Berry, 50 Md. 591. But apart from that there is as matter of fact no misrepresentation The appellants claim that “J. Gruber” and “John Gruber” are trade names which are fixed and invariable, and have been adopted and used by the family of John Gruber ever since his death in 1858. The family of John Gruber, using the term family as meaning next of kin, has, in the course of nature, by deaths and marriages, been changed both in individuals and names; therefore, to prevent confusion, it was deemed advisable always to have the family represented in the trade by the name of their common ancestor, “J. Gruber” and “John Gruber,” the originator of the almanack and the person who gave it its original circulation. The right of the family to trade under this name was decided in 50 Md. To this must be added all the other circumstances — (a) That this is a book intended to be read, and not like a patent medicine the ingredients of which are secret. (b) That it appears annually. (e) That the trade has been told since 1858, a period now of forty-eight years, every year and in every copy of the almanack, that John Gruber was dead and that his family was printing it under his name, which was the trade name of the family. (d) That from the nature of its publication, its circulation is comparatively limited, and it goes every year to practically the same people. Taking all these circumstances into consideration, no Court can find any intent to deceive, nor under all the circumstances is deception of the public the natural consequence of the use of the trade name.

Appeal from the Circuit Court for Washington County (Keedy, J.)