Majority
p. 794Max Fleischmann and Another, Pl’ffs, v. Simon Newman, Def’t. (Supreme Court, Special Term, Filed May, 1888.)
Headnote
Trade mark—Injunction—Words not subject op trade mark.The words “compressed yeast" and “ none genuine without our signature,” cannot be made the subject of a trade mark. Compressed yeast indicates the character and composition of the article, and cannot he appropriated by any one to his exclusive use; nor can a party appropriate the form of a package so as to exclude others from using the same package.
C. Bainbridge Smith, for pl’ffs; Benno Loewy, for def’t.
On the facts presented m this case, I do not think plaintiff is entitled to an injunction. The only
p. 795
words that" aré oh both labels are “ cómpressed'yeast’’"and ■“ none gemiine Without our signature.”
- These; words could not be made the subject of a trade mark, -Compressed yeast indicates the character and composition of the'article, and cannot be appropriated by any one to his exclusive use. Caswell v. Davis, 58 N. Y., 233 .
Nór can plaintiff appropriate the form of a package so as to exclude others from using the same character of package. Enoch Morgan Sons v. Troxell, 89 N. Y., 297 .
It appears that the general form of this label has been in general use. by manufacturers of compressed yeast before and since it was first used by the plaintiff.
Complaint dismissed, with costs.