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Product Infringement?

An advertisement for an unlisted Clayton’s Celebrated Rheumatic Bitters

17 May 2013 (R•021514) (R•2-122720)

While perusing Pittsburgh Directories in the late 1850s and 1860s for Zingari Bitters, I can across an advertisement (on the same page as the Zingari’s ad) for Clayton’s Celebrated Rheumatic Bitters and Liniment (below) put out by William Clayton & Son (William Clayton & C. E. Clayton).

I didn’t recall this specific brand although I was aware of Clayton & Russell’s Celebrated Stomach Bitters and wanted to see if there was a relationship. Hmmmm…. sure sounds like a Hostetter’s Celebrated Stomach Bitters. Usually, when an advertisement, more than a listing, occurs in a city directory, it means that a product is trying to get a lot of attention or is popular. I wonder what this bottle looks like? It is also interesting that there are no previous listings in any of the Bitters books that mention the bitters noted in the advertisement.

Read: Jacob & David Hostetter – Dr. J. Hostetter’s Celebrated Stomach Bitters

[updated 22 May 2013] New listing provided by Bill Ham for Bitters Bottles Supplement 2:

Advertisement
C 170.5  CLAYTON’S CELEBRATED RHEUMATIC BITTERS AND LINIMENT, Wm. Clayton and Son, Wholesale and Retail Liquor Merchants, No. 37 Diamond Alley, Pittsburgh
Leisure Hours, (Pittsburgh Quarterly), Volume 1, December 1858, Pittsburgh

Here is the advertisement that first got me interested in this post. Clayton’s Celebrated Rheumatic Bitters and Liniment advertisement – Leisure Hours (Pittsburgh Quarterly), Volume 1, December 1858 – Pittsburgh

Obviously, the time period here is far enough apart to dictate that Clayton’s Celebrated Rheumatic Bitters be considered as unlisted in Bitters Bottles and the Bitters Bottle Supplement. This is most likely a predecessor to the listed label only, Clayton & Russell’s Celebrated Stomach Bitters. The Carlyn Ring and W.C. Ham listing for the later, Clayton and Russell’s is as follows:

C 170  L…Clayton & Russell’s Celebrated Stomach Bitters
// b // A & CO.
Registered by S.R. Adams, Sole Proprietor
8 3/4 x 2 3/4 (6 1/2) 1/2
Square, Amber

Label: This bottle is embossed by the glass manufacture on the base of the bottle. Its reads A & Co. which stands for the John Agnew and Co., Pittsburgh, PA. The bottle label reads as follows CLAYTON & RUSSELL’S / CELEBRATED / STOMACH / BITTERS. (Has a picture of a nude man fighting with a two headed animal). Revised Trademark Formula / Alcohol 37 per cent / The Bitters of Clayton & Russell will be found a highly aromatic liquid and entirely free from any injurious substances. The herbs roots and barks used are possessed of active medicinal propitious and are well known. Standard remedies in the medical practice of the day. This preparation will be of great benefit in malarial districts as a reliable invigorant and tonic. Guaranteed by Adams & Co. MFG. under the food and drugs act. June 30th 1906. Serial number 2736. [Label information from Frank Wicker at Bottle Pickers]

Labeled Clayton & Russell’s Celebrated Stomach Bitters (center) – photo source unknown

Listing for William Clayton, Liquor Merchant, No. 37 Diamond Alley – Pittsburgh Directory By R.L. Polk & Co – 1860 – 61

I was quickly able to pinpoint a William Clayton as a Liquor Merchant in an 1860 Pittsburgh directory (see above). Other directories of this era support the finding. Pre-Pro.com actually lists him only in an 1870 directory in Pittsburgh.

My next ‘hit’ was a posting by Frank Wicker over at Bottle Pickers. Frank actually has a later, labeled, Clayton and Russell’s Celebrated Stomach Bitters bottle (pictured at the top of this post). Frank goes on to post about a product infringement legal case between Hostetter’s Celebrated Stomach Bitters and Clayton & Russell’s Celebrated Stomach Bitters. Imagine that! Both illustrations show a man fighting a dragon though Clayton & Russell’s illustration looks more like a giant crustacean.

1881 – The Federal Reporter: Cases Argued and Determined in the Circuit and District Courts of the United States, Volumes 9-10

Hostetter & Smith v. S. R. Adams

On Feb 18, 1882, in the Circuit Court S.D. New York for product infringement the Hostetter’s Company felt that the “Clayton & Russell’s Celebrated Stomach Bitters” bottle was designed to imitate the looks of one of the types of Hostetter’s labels and bottle styles. That the Clayton & Russell’s was manufactured to solely imitate the looks of the bottle and to deceive the customer into believing that they were purchasing the Famous Hostetter’s Celebrated Stomach Bitters. Hostetter’s Company sued over the words “Celebrated Stomach Bitters”. They were the sole owners of the label and trademark of the bottle. S. R. Adam’s was the sole proprietor of his company. The top photograph in this post shows the subject bottles and labels.

Read More: Saint George the Dragon Slayer – Not only on Hostetter’s

Wm. McCully & Co. advertisement – Pittsburgh Directory By R.L. Polk & Co – 1860 – 61

It is also interesting to note that on the same page as Clayton’s Celebrated Rheumatic Bitters advertisement, was this advertisement for Wm. M’Cully & Co. Glass Works (see above). At the bottom of the advertisement, it says “Particular attention paid to Private Moulds and Orders filled with promptness and dispatch”. I would suspect that if a bottle ever showed up, it might have a M’Cully & Co. embossing on the bottom. The later, labeled bottle is based embossed A & Co. which stands for the John Agnew and Co., Pittsburgh, PA.

Clayton & Russells Stomach Bitters label graphic – ebay

United States Patent Office, Trade-Mark for Medicinal Bitters,  S.R. Adams, No. 9,722, Registered Oct. 17, 1882.

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