Brown v. Doscher — 49 N.Y. St. Rep. 196

Majority

p. 196

David S. Brown et al., App’lts, v. John H. Doscher, Resp’t.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Teade-maek—Injunction pendente lite.

An injunction pendente lite will not be granted in an action to restrain infringement of a trade-mark where it is not shown that the wrapper used by defendant is such an imitation of plaintiff's as to be likely to deceive a purchaser of ordinary caution, and it appears from the papers that plaintiff has been guilty of attempting to deceive the public by false statements as to his trade-mark.

Appeal from order denying motion for injunction pendente lite.

This action is brought to restrain defendant from using a wrapper around his “ Leader Soap,’’ picturing a snow storm. Plaintiffs, upon their “ Blizzard Soap ” wrapper, represent the height of a “ snow blizzard,” and print thereon the words, “ Form of cake and title a trademark secured.” This statement defendant showed by affidavits and searches in the office for registration of trademarks was not true.

Rowland Cox, for app’lts; John Henry Hull, for resp’t.

No case was made out in the court below for the granting of an injunction pendente lite. The second wrapper of the defendants cannot, we think, be regarded as such an imitation of the plaintiff’s wrapper as to be likely to deceive a purchaser of ordinary care and caution. And to the first wrapper adopted by the defendant, but abandoned by him before the motion was heard, we deem it sufficient to say that in view of the allegation in the defendant’s affidavits, the plaintiffs were themselves guilty of attempting to mislead the public, by a statement upon the label used by them that the form of cake and title “ were protected by a trade mark secured,” which statement is shown by the papers to have been false. The plaintiffs have not shown such a superior equity as entitles them to a preliminary injunction.

We think that the rights of both parties can be more accurately determined and adjudicated upon the trial of the action, than upon a hearing on affidavits, and are, therefore, of the opinion that the order below should be affirmed, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.