Brown v. Doscher — 20 N.Y.S. 900

Majority

p. 900

Brown et al. v. Doscher.

(Supreme Court, General Term, First Department.

November 18, 1892.)

Headnote

Trade-Mark—Injunction Pendente Lite.

An Injunction pendente lite to restrain the imitation, by defendant, of plaintiffs’ label will be denied, where defendant shows that he abandoned the use of that label before the hearing of the motion, and that plaintiffs were misleading the public by falsely claiming that the form of their cakes of soap on which the label was used and the title in the label were secured by a trade-mark.

Appeal from special term, Mew York county.

p. 901

Action by David S. Brown and others against John H. Doscher to restrain the use of a trade-mark. An injunction pendente lite was denied, and plaintiffs appeal. Affirmed.

Argued before Van Brunt, P. J., and O’Brien and Lawrence, JJ.

Rowland Cox, for appellants. John Henry Hull, for respondent.

No case was made out in the court below for the granting of an injunction pendente lite. The second wrapper of the defendant cannot, we think, be regarded as such an imitation of the plaintiffs’ wrapper as to be likely to deceive a purchaser of ordinary care and caution; and as to the first wrapper adopted by the defendant, but abandoned by him before the motion was heard, we deem it sufficient to say that, in view of the allegations in the defendant’s affidavits that the plaintiffs were themselves guilty of attempting to mislead the public, by a statement upon the label used by them that their form of cake and title were protected by a trade-mark secured, which statement is shown by the papers to have been false, the plaintiffs have not shown such a superior equity as entitles them to a preliminary injunction. We think that the rights of both parties can be more accurately determined and adjudicated upon the trial of the action than upon a hearing on affidavits, and are therefore of the opinion that the order below should be affirmed, with costs and disbursements. All concur.