Majority
p. 951(73 Hun, 107.) BROWN et al. v. DOSCHER. (Supreme Court, General Term, First Department. November 17, 1893.)
Headnote
Trade Labels—Infringement.In an action to restrain an alleged infringement of plaintiffs’ wrapper it appeared that on the upper part of the wrapper were the words “Blizzard Soap” in letters of peculiar appearance on an octagonal figure. On the lower part of the wrapper, on a similar figure, was a brief mention of a “blizzard” in connection with plaintiffs’ soap. Between the octagons was a representation of the Brooklyn bridge. Over all was a representation of falling snow. On the upper part of defendant’s wrapper were the words “Leader Soap,” on an octagon. The letters and the octagon were somewhat similar to the corresponding part of plaintiffs’ wrapper. Below was a like figure, with the name of defendant as a maker of “strictly pure” soaps. Partly covered by the lower octagon was the picture of a building,, marked “Doscher & Co. [defendant] National Soap Works.” Falling snow was represented as on plaintiffs’ wrapper. Held, that the similarity was not great enough to deceive the public, and! the complaint was properly dismissed.
Appeal from special term, Hew York county.
Action by David S. Brown and Delaplaine Brown, composing the firm of David S. Brown & Co., against John H. Doscher, to restrain the use by the defendant of an alleged infringement of plaintiffs’' wrapper. The defenses were (1) that defendant’s wrapper was-not so nearly like plaintiffs’ as to be calculated to mislead; and (2) that plaintiffs came into court with unclean hands, because their wrapper had involved a misrepresentation. The complaint was dismissed, and plaintiffs appeal.
Affirmed.
For decision on appeal from order denying injunction pendente lite, see 20 N. Y. Supp. 900 .
The following are fac similes of plaintiffs’ wrapper and of defendant’s wrapper as first made and as afterwards modified:
p. 954Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
Rowland Cox, for appellants.
John Henry Hull, for respondent.
This action was instituted to restrain the use by the defendant of an alleged infringement of plaintiffs’ wrapper. On the appeal from the order denying motion for an injunction pendente lite this court expressed the opinion that the wrapper complained of could not be regarded as such an imitation of the plaintiffs’ wrapper as would be likely to deceive. The trial court, while holding that the plaintiffs are entitled to the exclusive use of the
p. 955
word “Blizzard” as a trade-mark for laundry soap, and the exclusive use of the wrapper which they employed to inclose cakes of soap, found as one of the facts, upon which it based the conclusion that the complaint should be dismissed, that the wrapper made use of by the defendant “is not calculated to deceive plaintiffs’ • customers, nor intending purchasers of plaintiffs’ Blizzard soap, and the public;” and, further, that the wrapper - has not actually misled any person to buy soap manufactured by defendant in the belief that it was of plaintiffs’ manufacture. After an examination of the wrappers, we agree with the trial judge that the resemblance is not such that it is calculated to deceive the ordinary buyer making his purchase under the ordinary conditions which prevail in the conduct of the particular traffic to which this controversy relates; and a review of the evidence requires a concurrence in his further finding that buyers have not been deceived by it. Plaintiffs’ were not, therefore, entitled to succeed. Fischer v. Blank, 138 N. Y. 244 , 33 N. E. 1040 . The judgment should be affirmed, with costs. All concur.
Cases cited
- Fischer v. Blank 138 N. Y. 244 p. 955