Rillet v. Carlier — 11 Abb. Pr. 186

Majority

p. 186

RILLET against CARLIER.

Supreme Court, Second District;

Special Term, June, 1870.

Headnote

Injunction.—Trademarks.

An injunction lies to protect the prior right in this country of one who has first adopted here a word from a foreign language to designate an article of his manufacture, although a similar article was previously produced and known under such designation in the foreign country.

Plaintiff made a syrup from promegranates which he sold under the name of “ Grenade Syrup.” Defendant sought to justify his subsequently adopting the same name for a rival article, by alleging that the word “ Grenade,” from the French language, signifying “ Pomegranate,” was used in France at and before its adoption by plaintiff here, as the name of a similar syrup sold there.—Held, that notwithstanding these facts, the plaintiff was entitled to an injunction.

Motion to dissolve an injunction.

The plaintiff manufactured from the juice of the pomegranate a syrup, which he named “ Grenadine ” and “Grenade Syrup,” and sold under those names.

Some months later, defendant commenced to make a syrup, which he sold under the name of Grenade Syrup.

p. 187

The plaintiff having obtained an injunction, defendant moved to vacate it, alleging that “ Grenade” was a French word, signifying pomegranate; and that “Grenade Byrup” was sold in France under that name, and denying that plaintiff could acquire an exclusive right to use a foreign name by being the first to introduce it into this country.

Coudert Brothers, for the motion.

L. A. Fuller, opposed.

It is clear, from the following recent decisions, that this injunction ought not to be dissolved: Messerole v. Tynberg, 4 Abb. Pr. N. S., 410; Matsell v. Flanagan, 2 Id., 459; Newman v. Alvord, 49 Barb., 588 .

The plaintiff adopted the words “ Grenade Syrup,” many months before defendants claim to have used them. It is undisputed that he has spent a large amount of money in establishing a business in selling the article known by that name.

The plaintiff has acquired by such adoption, a property in the use of those words as applied to a syrup he has made and introduced into the market.

The defendant can have no possible motive in using these words except to avail himself of the reputation the plaintiff’s article has gained under this name.

The fact that defendant uses other words in connection with the words “Grenade Syrup” does not give him the right to use the words “ Grenade Syrup” (Newman v. Alvord, 49 Barb., 588 ).

The name used by defendant is well calculated to deceive the public, and I cannot perceive of what value they can be to the defendant for any other purpose.

Motion to dissolve injunction denied, with ten dollars costs.

Footnotes

* This case was afterward tried upon the merits, at the September special term, before Mr. Justice Gilbebt, and the complaint was dismissed.