Majority
p. 123Baeder et al. v. Baeder et al. (Supreme Court, General Term, First Department. March 29, 1889.) Argued before Van Brunt, P. J., and Brady and Macomber, JJ.
Headnote
Trade-Marks—Preliminary Injunction—Flint Paper.In an action to restrain the infringement of a trade-mark the affidavits showed: that large sums had been expended by plaintiffs in establishing the reputation of their flint paper, for which they had adopted as a trade-mark the words “The Baeder Flint Paper Company, New York;” that their first quality flint paper bears the mark “Baeder’s Flint Paper Company, Flint Paper, ” and is well recognized as of' first quality, and of established reputation; that it is the practice of manufacturers to brand paper of first quality with the firm name, while second quality is designated differently,—as “Star Paper,’’and the. like; that defendants manufacture flint paper at Philadelphia under the name of Baeder, Adamson & Co., and for the-purpose of deceiving the public, and disposing of second-class paper, appearing to-be made by plaintiffs as their first-class paper, mark their second-rate paper as “Baeder’s Flint Paper, [Star,] manufactured at Riverside Flint Paper Mills, Philadelphia, No. 1 Warranted. ” Held, that a preliminary injunction was proper.
Appeal from special term, New York county.
Action by William A. Baeder and another against Charles B. Baeder and others, to restrain the infringement of a trade-mark. A preliminary injunction was granted restraining defendants from selling the goods manufactured by themselves as and for the goods manufactured by plaintiffs, and from, using, printing, or stamping on any flint or sand paper manufactured by them,, or on the packages or coverings thereof, the words “Baeder’s Flint Paper,” or any words having such a resemblance to the words adopted by these plaintiffs as their business name and trade-mark and means of describing the first, quality flint paper manufactured by them, to-wit, “Baeder’s Flint Paper Company, New York, Flint Paper.” Defendants appeal.
John E. Parsons, for appellants. Mason W. Tyler, for respondents.
The affidavits show that large sums of money have been-expended by the plaintiffs in establishing the reputation of their flint paper,, and that they have adopted for that purpose as a trade-mark the words “ The Baeder Flint Paper Company, New York.” Their first quality of flint paper bears the uniform stamp or mark of “Baeder’s Flint Paper Company, Flint Paper, ” and is well recognized in the market as paper of first quality, and of established reputation. The defendants also manufacture flint paper in the city of Philadelphia, under the name of Baeder, Adamson & Co. It is shown, that there is a practice prevalent among manufacturers to brand the first quality of their paper with the firm name, and thus identify themselves with, such superior products; while the second quality of flint paper commonly bears-
p. 124
a different designation,—such as “Star Paper,” and the like. Some time •prior to the month of March, 1888, the defendants, Baeder, Adamson & Go., had marked their second-rate paper as flint paper, manufactured at Riverside Flint Paper Mills, Philadelphia, with the cut of a star under the words “flint paper.” At or about the last-mentioned time they changed such designation of their second-class paper so it should read as follows: “Baeder’s Flint Paper. i/t. Manufactured at Riverside Flint Paper Mills, Philadelphia, No. 1, Warranted." It is asserted on the part of the plaintiffs—and the affidavits in their behalf support such contention—that this close imitation of the •plaintiffs’ trade name and their mark upon their goods was adopted for the purpose of deceiving the public, and turning off upon purchasers a second-class paper, which should appear to have been made by the plaintiffs themselves as their first-class paper. This is the view taken by the learned judge at the special term in denying the motion to dissolve the injunction. A perusal of the affidavits satisfies us that a proper case was made by the plaintiffs to restrain the defendants in conducting their business in the manner as is above enjoined until the trial of the action. It follows that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.