Baeder v. Baeder — 23 N.Y. St. Rep. 408

Majority

p. 408

William A. Baeder et al., Resp’ts, v. Charles B. Baeder et al, App’lts.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

Injunction—When will be granted.

A preliminary injunction will be granted to restrain defendants, until the trial of the action, from selling goods manufactured by themselves stamped so as to closely imitate plaintiffs’ trade name and mark.

Appeal from an order of the special term, containing a preliminary injunction restraining the defendants from selling the goods manufactured by themselves as and for the goods manufactured by the 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, 11 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 Fhnt Paper Company, New York Flint Paper.”

John E. Parsons, for app’lts; Mason W. Tyler, for resp’ts.

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 & Company. 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 a different designation, such as Star paper, and the like. Sometime prior to the month of March, 1888, the defendants, Baeder, Adamson & Company, had.marked their second rate paper as flint paper, manufactured at Riverside Flint Paper Mills, Philadel

p. 409

phia, 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: “ Bader’s Flint Paper * Manufactured at Riverside Flint Paper Mills, Philadelphia, ISTo. 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 ten dollars costs and disbursements.

Van Brunt, Ch. J., and Brady, J., concur.