Brooten

This is a suit to enjoin infringement of a trade-mark. Sustaining a motion to the amended bill, supplemented by answers to interrogatories propounded by defendant, the court below entered a decree of dismissal, from which plaintiff appeals. Admittedly defendant infringes if plaintiff has a valid trade-mark in the words “Kelp Ore,” and hence consideration is limited to the one question.

About 1898 plaintiff discovered upon land belonging to him in Tillamook county, Oregon, a deposit containing salts and other minerals. Conceiving it to be of medicinal value, he put it on the market under various names, such as “Iodine Earth,” “Melitite,” and “Brooten’s Medicinal Mud.” Becoming convinced that it could he improved, so he alleges, by drying it and exposing it to the elements, he so treated it, but added nothing to it, and thereupon advertised and sold it as “H. H. Brooten’s Kelp Ore.” While from 1906 to 1923 he so designated it in his advertising matter, it was put out and marketed in plain paper bags, without brand or mark of any character. In 1923 he adopted a uniform style of labels, which were put upon the containers in which the product was offered for sale; the labels bearing…