Arkelian

A. B. Humphrey, in the winter of 1893 and spring of 1894, procured some grape cuttings from the Department of Agriculture at the State University in Berkeley, from grape vines which had been imported by the United States Department of Agriculture from Persia. Beginning in September, 1895, A. B. Humphrey entered into the business of marketing the grapes grown by him from these cuttings under the name “Lady Finger.” In July, 1924, he registered the name “Lady Finger” as a trade-mark with the Commissioner of Patents. The grapes are long, slender, firm, and white, and Mr. Humphrey testified that, as soon as he saw the grapes, he was impressed with their resemblance to ladies’ fingers, and at once named the grapes “Lady Fingers.” The method of using the phrase “Lady Finger” was by rubber stamp impressed upon the lithographed label. It was also used in advertising matter as “Humphrey’s Lady Fingers.” Later A. B. Humphrey assigned his business of growing and packing grapes to the appellant, who brought suit against the appellee for violation of its trade-mark “Lady Finger” in connection with the packing and selling of this variety of grapes. The appellee also is engaged in growing,…