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12
THE
TKXJ&IG TRADE
REVIEW
CHICKERING & SONS WIN GREAT VICTORY.
The Famous Boston Establishment Upheld in all Points by Judge Kohlsaat in Their Suit Against Chick-
ering Bros, of Chicago—Preliminary Injunction Granted—The Judge Decides That While Chicker-
ing Bros. Have a Right to use Their Name it Must be used in a way not to Injure the Business
of the House of Chickering & Sons—A Very Exhaustive Ruling Which is in Line With Previous
Decisions in Similar Cases.
Members of the trade throughout the
industry have awaited with the liveliest in-
terest the decision of Judge Kohlsaat of the
United States Circuit Court in the suit
brought by Chickering & Sons, of Boston,
against Chickering Bros., of Chicago. The
full text of the decision which follows and
rendered the closing days of last week by
the learned judge, is an extremely important
one and sustains the contentions of Chicker-
ing & Sons in every point.
This illuminative ruling is not merely a
victory for the famous house of Chickering
& Sons, but it is a victory for the right, and
it interests every manufacturer who has built,
or is endeavoring to build, a reputation for
his name or trade-mark in the commercial
world:
In the United States Circuit Court, Northern
District of Illinois, Northern Division.
Chickering & Sons
)
vs.
y No. 26,159.
Clifford C. Chickering, et. al. )
Kohlsaat, District Judge: Jonas Chick-
ing and James Stewart began the manufac-
ture of pianos at Boston in the year 1823.
In 1826 Stewart retired. From 1826 to 1841
Jonas Chickering, either alone or in partner-
ship with James McKay, continued the bus-
iness. In 1852 Jonas Chickering and his
three sons, Thomas E., C. Frank and George
H., entered into a contract for the conduct
of said business under the firm name of
Chickering & Sons. In 1853 Jonas Chicker-
ing died and from that date until 1867 the
business was conducted by the sons. In 1867
the sons incorporated in New York, under
the name of "Chickering & Sons,"' under
which corporate name the business is now
conducted. In 1899 George H. Chickering,
the only surviving son of Jonas Chickering,
died.
As far back as 1881 defendant Clifford
C. Chickering was employed in Chickering
& Sons' factory. In 1882 defendant Fred.
W. Chickering was also placed at work in
said factory. These last named Chickerings
are sons of Josiah B. Chickering, a cousin
of the Chickering sons. In 1867 Chickering
& Sons were awarded a medal at the Paris
Universal Exposition, and the cross of the
legion of honor was conferred upon C. Frank
Chickering, one of the sons of Jonas Chick-
ering aforesaid. This emblem was in the
form of a maltese cross, bearing on one side
an eagle and on the other the head of Na-
poleon. In 1892 the defendants, the two
brothers Chickering, began to manufacture
pianos, or to assemble tlie various parts pur-
chased from others into pianos, under the
name of Chickering Bros., at Chicago, mark-
ing the fallboards as follows: "Chickering
Bros.," in old English letters, followed by
the word "Chicago." At first the business
was so unimportant that the defendant, Fred.
W. Chickering, withdrew in 1896, until such
time as it would warrant his return to it.
As early as 1892 the defendants Chickering
adopted as an emblem upon their catalogues
and stationery a picture of a maltese cross,
being moved thereto, as they claim, bv the
fact that their father had formerly used that
design as a prize medal in his academy at
Cincinnati, Ohio. In 1893 the design on
the cross was changed to that of the figure
known as the Chicaeo "I Will." In 1806
defendants sold 45 of their pianos; in 1898,
iTo; in T89T, T6I ; in 1900, 227: in \()O\.
283—all marked "Chickering Bros., Chic-
ago," as aforesaid, upon the fallboard,
In 1899 complainant adopted the design
of the cross of the legion of honor upon its
letterhead. In 1901 complainant was rein-
corporated under a special act of the legis-
lature of Massachusetts, and on December
31, 1901, took over the business of the New
York corporation, the name being the same.
In January, 1902, defendants, the Chicker-
ing brothers, and L. P. Chickering, incor-
porated under the laws of Illinois as "Chick-
ering Bros."
Defendants' pianos have posted upon the
backs thereof a paper notice declaring that
Chickering' Bros, has no connection with
Chickering & Sons of Boston. There seems
to be some uncertainty in the record as to
when complainant or its predecessor first
learned of defendants' methods with regard
to their pianos. C. H. Eddy, treasurer of
complainant, says in his affidavit that "noL
until 1900 did we receive serious complaint
that Chickering Bros.' pianos were being of-
fered as genuine 'Chickerings.'" On Oc-
tober 31, 1900, complainant wrote a letter
to one Poppenburg, in which it said: "We
feel we need only point out the matter (the
fact that P. had been advertising a Chicker-
ing piano for sale) to you and that you will
be very glad to have the words 'Chickering
Bros, upright substituted for 'Chickering
upright' '' thus showing that the use of the
name 'Chickering Bros.' upon pianos of de-
fendants' make was then known to com-
plainant's predecessor and not objected to.
* * * * * * * * *
This suit was begun February 10, 1902.
From the affidavit of Eddy, above quoted,
it appears that complainant was actually en-
gaged in the year T901 in securing the nec-
essary evidence upon which to bring suit.
There is evidence to show that up to 1900
defendants', the Chickering brothers', letter-
heads read, "Manufacturers of Chickering
Bros, the Clifford Pianos." This piano, de-
fendants claim, in their letter of October
13, 1900, to have practically dropped about
1898. It does not appear that defendants
manufactured pianos upon which the name
"Clifford" appeared, but only referred to
that name in their letterheads and advertis-
ing. From 1900 defendants used letter-
heads reading, "Manufacturers of Chicker-
ing Bros. Pianos—the only piano made by
a Chickering." This statement followed up-
on the death of George H. Chickering, the
last Chickering connected with Chickering &•
Sons. Defendants Chickering also about
that time caused to be cast into the frame
of their piano this same statement—"The
only piano made by a Chickering." About
the same time defendants Chickering caused
to be printed a pamphlet entitled "A sketch
of the Chickering family and their famous
piano," at the close of which they say: "By
right of purchase this name (Chickering)
will continue to be used on the Boston pi-
ano ; but by reason of their kinship and be-
cause of their long practical training under
the 'Chickering system,' the fact is properly
advanced that 'the only piano made by a
Chickering is now made in Chicago by
Chickering Bros.' "
On the back cover of this pamphlet is a
maltese cross with the words "Chickering
Bros., Chicago," in a circle. The pamphlet
further states that "in the spring of 1891
Frank Chickering died, leaving the affairs
of the company (Chickering & Sons) very
much involved, and it was found necessary
to interest outside capital to such an extent
that then and there the controlling interest
in the company passed out of the hands of
the Chickering family; that owing to this
unexpected change in their outlook with the
old house, the young Chickerings decided to
start to make a piano of their own in Chi-
cago, and in 1892 the first Chickering Bros,
pianos were placed on the market."
It does not appear that defendents
Chickering have ever claimed that their pi-
ano was the original Chickering piano, but,
on the other hand, they have in a modest
way called attention to the fact that theirs
was not the Boston Chickering piano.
Naturally, as it seems to me, growing out
of the acts of defendants Chickering, vari-
ous dealers in and advertisers of defendants'
piano have far exceeded defendants' meth-
ods in claiming for defendants' pianos that
they are real Chickerings. Hillman Bros,
of Pennsylvania put out a card for defend-
ants' product as the "celebrated Chickering
piano." Becker's Music Store advertises in
the Oil City Derrick in December 29, 1900,
as follows: "To settle all doubt about a
genuine Chickering piano, look in the iron
frame for the words, 'The only piano made
by a Chickering' "—referring to defendants'
product. H. j . Filers of Portland, Ore.,
produces an advertisement oi Allen & Co.
offering "the genuine Chickering, the only
piano made by a Chickering"—referring to
defendants' piano. He also sets out in his
affidavit that one Dr. Thayer of Gilroy, Cal.,
bought, as he supposed, a genuine Chicker-
ing, but afterward found that it was defend-
ants' piano and had it removed. He also
says that he paid for two Chickering Bros,
pianos, when he asked for a high-grade
piano. He was not told that the pianos were
defendants' make, nor was there any warn-
ing card on either of them.
R. A. O'Xeill makes affidavit that one
Adams, who carried defendants' product, at-
tempted to sell defendants' piano to one Mrs.
Carrie Behans of St. Louis, Mo., for a gen-
uine Chickering. Mark A. Blumenberg of
the Musical Courier, New York, makes affi-
davit to the confusion as to who are the
makers of the Chickering piano. So, also,
does John C. Freund of the Music Trades,
New York. In a letter from defendants to
Mr. Freund, asking why he discontinued
their advertisement, Mr. Freund replied
(about October 17, 1900) : "In some of the
printed matter which you have put out, you
do all that von can to imitate the Chickering
house of Boston. In the very cut which
heads letter which is now before me you at-
tempt to imitate their cross of the Legion of
Honor. I have before me, received within
the last two days, a letter from a dealer
which informs me that one of your agents
claims that you are the only legitimate manu-
facturers of the Chickering piano and that
you are the youngest son of the late Jonas
Chickering."
Chas. H. Johnson deposes to the confu-
sion growing out of the various advertise-
ments of defendants' pianos, and produces
newspaper notices, one of which reads:
"Now, if you want a real Chickering piano,
made by the children of the original Chick-
ering, you must of necessity buy a Chicker-
ing Bros." This is of date November 1.
i cjo i, and is from the Nebraska Democrat.
The other in the Wayne (Neb.) Republican,
of November 6, 1901, says: "The title
(Chickering) mav be bought or confiscated,
but the traditional ability does not accompany
it in this case. It will be observed that the
only Chickering blood at presvMit engaged
in piano building comprises the firm of Chick-
ering, and we sell their goods. The old firm
of Chickering & Sons has a name that is only
theirs by purchase. You can judge for your-
selves which would be more liable to uphold
the reputation of the house."
* * * * * * * * *
Carl Hoffman of Kansas City deposes to