Thomas McMullen & Co. White Label

Digger,

Here is a Tho's McMullen& Co's White Label. The bottle is 10 inches tall and two and 1/2 inches wide There is no seam running up the bottle but there is one going around the shoulder Thank you for helping me out I was glad to make donation as your web site has helped me out a lot.
Scott H.


Tho McMullen & Co. White Label Bottle

Scott, your bottle is worth about $15-20 empty and without a label and was made in a paste mold. The bottle body was shaped by the glass gathered on a blown pipe being blown into an open cylinder. The blower then rotated the bottle in the mold which erased all of the mold seams and left faint rings around the body. This style of bottle was typically made around the turn of the century.

 The distinguishing feature of your bottle is the "label" which appears to be etched into the glass. This treatment, uncommon in this country, was popular for wine bottles and ales produced in the United Kingdom. It was this very feature which gives us a most interesting story behind your bottle.

Thomas McMullen & Co. of New York were importers of Bass Pale Ale, Bass Ale and Guinness under their "White Label" name. They began importing in 1854 and continued with these brands until 1937 when they lost the agency for them. Thomas McMullen, founder of the company located at 44 river St in New York City, died in 1893 and was succeeded by his son-in-law, Thomas Day, who ran the business until he died suddenly in 1895.

New York Herald article

Article from the New York Hearld March 12, 1895

Our country has a long history of passing tariff laws to protect domestic business profits threatened by "cheap imports".  The Dingley Act of 1897, introduced by U.S. Representative Nelson Dingley, Jr. of Maine, was one such action. It raised tariffs on all manner of imported goods from raw materials like lime, gold, silver, lead to all manner of manufactured goods like foodstuffs, spirits, glassware, textiles, drugs and just about everything in use at the time in United States. The Act was intended to counteract the Wilson-Gorman Tariff Act of 1894, which had lowered rates. Each section of the voluminous Act laid out an amount of money to be levied on various classes of goods.

For example, the Act indicated that ale, porter, and beer, in bottles or jugs, was assessed at forty cents per gallon, but no separate or additional duty was to be assess on the bottles or jugs; otherwise than in bottles or jugs, it was twenty cents per gallon.

Bottles and other glassware were subject to these taxes whether empty or full. The chart below shows the tax on various types of bottles and vials for both the 1894 tariff and the Dingley Act. (An ad valorem tax (Latin for according to value) is a tax based on the value of the property.)

chart showing tax owed on bottles
Chart Showing Dingley Act Tariff Amounts Applied to Bottles and Vials

McMullen & Co. whose import business was hurt by the law, sued over the tariff being levied on their bottles which they imported empty and filled at their factory in New York. Their objection was based the distinct feature of their bottles and on the language  in paragraphs 99 and 100 of the Act as shown below:

GLASS AND GLASSWARE:

99. Plain green or colored, molded or pressed, and flint, lime, or lead glass bottles, vials, jars, and covered or uncovered demijohns and carboys, any of the foregoing, filled or unfilled, not otherwise specially provided for, and whether their contents be dutiable or free (except such as contain merchandise subject to an ad valorem rate of duty, or to a rate of duty based in whole or in part upon the value thereof, which shall be dutiable at the rate applicable to their contents), shall pay duty as follows: If holding more than one pint, one cent per pound; if holding not more than one pint and not less than one fourth of a pint, one and one-half cents per pound; if holding less than one-fourth of a pint, fifty cents per gross: Provided, That none of the above articles shall pay a less rate of duty than forty per centum ad valorem.

100. Glass bottles, decanters, or other vessels or articles of glass, cut, engraved, painted, colored, stained, silvered, gilded, etched, frosted, printed in any manner or otherwise ornamented, decorated, or ground (except such grinding as is necessary for fitting stoppers), and any articles of which such glass is the component material of chief value, and porcelain, opal and other blown glassware; all the foregoing, filled or unfilled, and whether their contents be dutiable or free, sixty per centum ad valorem.

Their argument rested on the idea that their glass bottles were 'sand blasted', not decorated and so were not subject to either paragraph 99 or paragraph 100.

Glass bottles on which there have been produced, by the process of sand blasting, inscriptions giving the name of the owner or dealer and the brand of their contents, are not subject to classification under paragraph 100, tariff act of 1897, as ornamented or decorated, nor as manufactures of glass, under paragraph 112, but are dutiable as plain glass bottles, according to capacity, under paragraph 99.—Koscherak v. United States (decided by the circuit court of appeals for the second circuit December 7, 1899, not yet reported) followed. Koscherak v. United States (91 Fed. Rep., 524) and tn re Koscherak (G. A. 3957) reversed.—In re Witteman (G. A. 4054) and in re Borgfeldt (G. A. 4073).

Before the U. S. General Appraisers at Hew York, December 22, 1899.

In the matter of the protests, 46640/, etc., of Thomas McMullen & Co., against the decision of the collector of customs at New York, N. Y., as to the rate and amount of duties chargeable on certain merchandise, imported per the vessels and entered on the dates specified in the schedule.

Opinion by Somervillk. General Appraiser.

The merchandise covered by the protests consists of ale bottles of common colored glass, holding not more than one pint and bearing the inscription "Thos. McMullen & Co.'s White Label." This inscription is shown by the testimony to be produced by the impulsion of sand, through machine power, against the surface of the bottles, the process being known as sand blasting. This process was held by the Board in re Witteman (G. A. 4054) to be different from the processes of etching, engraving, and cutting. The testimony in this case satisfactorily sustains that finding of fact.

These bottles were classified and assessed for duty by the collector at the rate of 11 cents per pound, under paragraph 99 of the tariff act of 1897, as "plain green or colored, molded or pressed, * * * glass bottles, * * * holding not more than one pint and not less than one-fourth of a pint." They are claimed by the importers to be subject to duty at 45 per cent ad valorem, under paragraph 112, as manufactures of glass, or under paragraph 100, which, so far as it pertains to the question under consideration, reads as follows:

100. Glass bottles, decanters, or other vessels or articles of glass, cut, engraved, painted, colored, stained, silvered, gilded, etched, frosted, printed in any manner or otherwise ornamented, decorated, or ground (except such grinding as is necessary for fitting stoppers), * * * sixty per centum ad valorem.

This paragraph is a condensation of paragraphs 89 and 90 of the tariff act of 1894, which were recently construed by the circuit court of appeals, in Koscherak v. United States (suit 2634, decided December 7, 1899, not yet reported). The case involved the classification of siphon bottles of two kinds, (1) bottles which had this inscription etched upon them, "Otto Brandt, Newark, N. J. This siphon not to be resold;" (2) other bottles etched with more elaborate inscriptions and figures, which were of an artistic character and pronounced to be decorative in their effects. The following language was used by Judge Lacombe in commenting on the paragraphs in question:

The use in the new section of the phrase, "or otherwise ornamented or decorated," after an enumeration of several processes by which an article may be ornamented or decorated, not only implies but indicates an understanding that this result of the enumerated processes is to be an ornament or decoration in order to bring the article within the terms of the paragraph. Under any other construction, it must be held that Congress, while using a form of words well recognized as conveying one meaning, intended that they should be given a different meaning, and should thus be destructive of a distinction between plain and decorated glassware which has been recognized for many years.

After discussing the provisions of an analogous character in previous tariff acts, the opinion continues as follows:

We are, therefore, of the opinion that the cutting, engraving, etching, etc., which will bring a glass bottle within the terms of this paragraph must be substantial, and sufficient to amount to an ornament or decoration.

It was accordingly held by the court that where there was nothing etched on bottles except the name and address of the owner, with the words, "This siphon not to be sold," inclosed in rectangular bines, the bottle was not decorated or ornamented within the meaning of said paragraph 90 of said act of 1894.

This decision reversed a decision of the circuit court for the southern district of New York, in Koscherak v. United States (91 Fed. Rep., 524), reaching a contrary conclusion as to similar merchandise; also, a decision of the Board in re Koscherak (G. A. 3957). Note in re Borgfeldt (G. A. 4073).

We accordingly find that the bottles under consideration are not decorated or ornamented, and that they have not been otherwise subjected to any process which brings them within the purview of paragraph 100 of said act. The protests are, therefore, overruled, with an affirmance of the collector's decision in each case.

And so it was found that glass bottles having the words "Thos. McMullen & Co.'s White Label" ground thereon by means of the process of sand-blasting are dutiable under the provision in paragraph 100, of the Tariff Act July 24, 1897 and not under paragraph 99 of said act, relating to "plain glass bottles."—Id. (U.S., ix.v., 1902)

This case was not the only one in which the Thomas McMullen Company would find its way into case law. A second suit was filed against them claiming unfair competition  by another importer English of ale. the complaint centered around the fact that the "white label" was intended to fraudulently mislead the public. The two bottle are shown below as presented in the court case.

National Reporter System, New York (State). Superior Court (New York), New York (State). Court of Appeals - 1898 -
(23 App. Div. 601.)

DAY et al. v. WEBSTER et al. (Supreme Court, Appellate Division, First Department. December 31, 1S97.)


1. Trade Labels—Unfair Competition—Fradd.

In an action for an injunction, based, not upon infringement of a trademark, but on the theory of unfair competition, fraud is the essence of the claim.

2. Same—Injunction.

Where, In an action to restrain the use by defendant of a certain label, the plaintiff introduces no evidence except the respective labels, and experienced witnesses for defendant testify to the long-continued use of defendant's label on the market, and that they never heard of any one being deceived by It, no injunction-can be granted, unless the labels, considered in the light In which they would appear to an ordinary buyer, making his purchases under the ordinary conditions prevailing in the conduct of the particular traffic in question, are so similar as to make out a fraudulent intention on defendant's part to palm off its goods as those of the plaintiff. Appeal from special term, New York county.

Action by Eva W. Day and others against Charles B. Webster and others. From an interlocutory judgment, defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and PATTERSON, JJ. Delos McCurdy, for appellants. E. H. Moeran (Wm. J. Leitch, of counsel), for respondents.

BARRETT, J. There is no question in this case of the infringement of a technical trade-mark. No claim upon that head, apart from their entire label, is made by the plaintiffs in their complaint; and, upon the trial, in answer to a query of the learned judge, the plaintiffs' counsel conceded that there was no question of trade-mark. The plaintiffs' label was treated as the equivalent of their trade-mark. They speak throughout of their adoption, not of any defined name or device, but of "a special, particular, and distinctive label, device, and trade-mark," a fac-simile of which is appended to their complaint That fac-simile is their entire label, as applied to every bottle of ale put up and sold by them. What they claim, therefore, is, in substance, unfair competition; that is, that the defendants are fraudulently attempting to pass off their goods as the goods of the plaintiffs. The question, thus, is, have the plaintiffs proved this charge of fraud?

In the case of a technical trade-mark, to which the plaintiff shows a property right, fraud is not the essence of the claim. That property right may be infringed unintentionally, as well as fraudulently, and the innocent infringement will be restrained, irrespective of the question of intention. Not so, however, where the question is solely one of unfair competition. There fraud is the essence of the claim. It is true that the similarity of the wrongdoer's label may be so great that fraud will be inferred from a mere inspection of the respective labels. Where, however, the similarity is not so great as, upon a mere inspection, to warrant the conclusion of fraud, resort may be, and usually is, had to evidence aliunde. In the case at bar, the plaintiffs rested upon the introduction of the respective labels. They offered no scintilla of evidence tending otherwise to show a fraudulent intention. On the other hand, the defendants gave evidence, which is not in any manner rebutted, to the effect that London Club ale had been openly sold by them under the label now complained of for some 4 years, without objection or interference; also, that this ale, thus labeled, had been on the market for upward of 6 years; that it had been listed on their catalogues as "London Club Ale," and billed and sold under that name; that they never knew of any instance, and never heard of any, in which their ale or their label was mistaken for the plaintiffs'. All this evidence was fortified by that of an independent witness, himself an importer of wines and liquors, who testified that he had known the London Club Ale and its label for some 10 or 12 years; that he never heard of any one mistaking that ale for the plaintiffs'; that the difference between the two is perfectly plain and clear; that the London Club ale is a brand of ale prominently known among dealers, and is, and has been for years, listed and sold by dealers for London Club ale. We are, therefore, called upon to determine whether the similarity of the two labels is so great that, without additional proof on the part of the plaintiffs, and against this positive and undisputed testimony furnished by the defendants, a fraudulent intention upon the latter's part to palm off their ale as that of the plaintiffs is made out. No actual deception has been shown; quite the contrary, as we have seen. Is, then, the probability of deception so great as to warrant the presumption of fraud?

We think but one answer can be given to this question, and that it most be in the negative. It is difficult to see, upon an inspection of these labels, how even the most unwary purchaser could be deceived. The prominent feature of the plaintiffs' label is "Bass & Co.'s Pale Ale." In the circle which forms the center of a device founded upon the British arms, we find printed in red letters the words, "Bottled by Thomas McMullen, 44 Beaver St., New York." As if to draw the eye to these words in red letters, the signature "Thomas McMullen & Co." appears, apparently written, across the circle in deep, black ink. At the top of the label are the words "Trade-Mark" in red letters ; at the bottom, the words "White Label," also in red letters. Beneath the device of the British arms appears the signature "Bass & Co.," also seemingly written, followed by the printed words "Burton on Trent, England." Underneath the latter words a "caution" is subjoined, in red letters, as follows: "To prevent deception, observe fac simile of signature on label and cork." Upon the neck of the bottle is a small label, with the words "White Label" printed on it, followed by the written words "Thomas McMullen." Let us now look at the defendants' label. Its most striking feature is "London Club Ale." These words are prominently printed in even larger letters than the words "Bass & Co.'s Pale Ale" upon the plaintiffs' label. In the center of the circle, which in a measure corresponds with that upon the plaintiffs' label, the words "Wells Bros.,' London," appear in printed letters, together with a triangular shaped device in red. Not a word here as to the bottling of the ale. No signature of Wells Bros, across the circle in contrasted ink. No signature, in fact, at all. No signature beneath Wells Bros., or of any one. Instead of the plaintiffs' "caution," we find a few words as to the proper manner of keeping the ale in good condition. The words at the top and bottom of the plaintiffs' label are conspicuously absent, while the small label on the neck of the defendants' bottle reads "London Club. Wells Bros." The suggestions of similarity are the use of the British arms device, the word "Extra" in red letters after the words "London Club Ale," and the appearance beneath the British arms device of the words, "From Burton on Trent, England." As to the British arms device, there is no attempt to photograph the plaintiffs' design. On the contrary, the defendants' design varies materially from that of the plaintiffs. There is, in this particular, nothing more than the application, in a modified form, of something which is in general use. The word "Extra" has surely no possible significance. As to the remaining point of alleged similarity, we need only say that the defendants were certainly not called upon to defend themselves from the mere insinuation—for that is all there is of it, in the absence of averment or proof—that their ale was not manufactured at, and did not come from, Burton on Trent, England. The defendants' label, we may add, is white, and it is shaped in a somewhat similar manner to the plaintiffs'.

These details, however, are trivial, and entirely insufficient, in view of the marked evidences of dissimilarity in crucial matters, to warrant such a finding as was essential to entitle the plaintiffs to the relief they asked. The rule, where the case is one of unfair and dishonest competition, and not of trade-mark proper, is well stated in Fischer v. Blank, 138 N. Y. 252, 33 N. E. 1040. The true rule, as was said by the court of appeals in that case, "is whether the resemblance is such that it is calculated to deceive, and does in fact deceive, the ordinary buyer, making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates." The learned trial judge observed, in the course of the trial now under review, after an inspection of the two labels, that he saw no resemblance at all between them; yet, in his written opinion he says he is unable to distinguish the case at bar from Fischer v. Blank, supra. It is apparent that the judgment which he expressed upon the trial was subsequently changed by what he supposed to have been held in the case cited. We think the learned judge must have overlooked the fact that in Fischer v. Blank there was abundant proof, not only that the defendant's labels were calculated to deceive, but that they did in fact deceive, many purchasers. This latter fact was adverted to and emphasized in the court of appeals, as well as at the general term. In the case at bar, however, such evidence is completely wanting, and consequently we have no guide save the labels, standing alone. Now. as these labels stand alone, they must be considered, as the court of appeals said, in the light in which they would appear to an ordinary buyer, making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic in question. What, then, would an ordinary purchaser of "Bass & Co.'s Pale Ale" look for? And what would naturally and primarily strike his eye? Clearly, the name. As was said in Blackwell v. Crabb, 36 Law J. Ch. 504, where the case of infringement is to be decided merely by an inspection of the two labels, and it is difficult to say where the imitation begins, the "important question is, what is the customer likely to look at?" In this case, said the court, the "name is the thing which a purchaser would look at, and that is conspicuously different." This doctrine is applicable here. These plaintiffs are selling their "Bass & Co.'s Pale Ale," with a label which emphasizes that fact. The defendants are selling their "Wells Bros.' London Club Ale," with a label which, with equal, if not greater, prominence, brings their trade-name and characterized ale directly before the eye. The name, however, is here but a single point of dissimilarity. There are, as we have seen, many others. Points of dissimilarity, in fact, abound. The more we look at these labels, the less we see of similarity. If, however, our view of the marked dissimilarity in these labels be too strong, still the question whether, upon the whole, the defendants' label is calculated to deceive the ordinary buyer of "Bass & Co.'s Pale Ale" is, to say the least, sufficiently doubtful to call for further proof before convicting reputable merchants of intentional fraud. We think, therefore, that the judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event All concur.