Hyperlawhypertext legal database New York Asbestos Manufacturing Co. v. New York Fireproof Covering Co. 62 N.Y.S. 339

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New York Asbestos Manufacturing Co. v. New York Fireproof Covering Co.

62 N.Y.S. 339 Court N.Y. Sup. Ct. Decision date 1899-11-28 English

Delivered by COHEH, J.

Contents

Majority

p. 339
NEW YORK ASBESTOS MFG. CO. v. NEW YORK FIREPROOF COVERING CO.
(Supreme Court, Special Term, New York County.
November 28, 1899.)

Headnote

Trade-Marks—Descriptive Words.
The term “air cell,” used in connection with the manufacture of fireproof material, is descriptive merely, and hence not the subject of a valid trade-mark.
Petition for preliminary injunction by the Hew York Asbestos Manufacturing Company against the Hew York Fireproof Covering Company. Injunction denied. >
Straley, Hasbrouck & Schloeder, for plaintiffs.
Boese & Carhart, for defendants.

The plaintiff company asks a preliminary injunction restraining the defendant from using the words “air cell” in connection with the manufacture and sale of fireproof covering or material, etc., on the grounds: (1) That there has been a violation of the plaintiff’s trade-mark “air cell”; and (2) that the defendant’s conduct in trade has been unfair and inequitable. The term “air cell” is descriptive, and not merely arbitrary or fanciful, and, as used by the plaintiff, is not the subject of a valid trade-mark. The consequences that have arisen, and of which the plaintiff complains, seem to be the natural results of fair competition, and not due to unfair dealing. Plaintiff’s equities are, at best, doubtful. The motion must therefore be denied.