Sweezy v. McBrair — 69 N.Y. St. Rep. 240

Majority

p. 240

Arthur W. Sweezy, App’lt, v. Henry C. McBrair, Resp’t.

(Supreme Court, General Term, Second, Department,

Filed July 26, 1895.)

Headnote

Trade-mark—Injunction.

A person who sells to a dentist a preparation, covered by a trade-mark, which can be used only by those in his occupation, cannot enjoin him from using it or advertising that he uses it, where, in the sale, no restrictions were placed upon its use.

Appeal from a judgment, dismissing the complaint.

Gilbert 0. Hulse, for app’lt; Vanamee, Watts & Vail, for resp’t.

This is an appeal from a judgment, rendered at the Orange special term, dismissing the complaint. The action was brought to restrain the defendant from using and advertising a certain preparation, known as “ Hypodentine,” prepared by the plaintiff, as “a local anaesthetic for the painless extraction of teeth.” The plaintiff sold a, bottle of this mixture, and it came into the possession of the defendant, who advertised that he used the same in the extraction of teeth. Undoubtedly the word may have been a valid trade-mark, and if the defendant had made or advertised and exposed for sale a spurious article he might have been enjoined; but that is not this case. Here the defendant advertised that he used the genuine article, and it was sold by the plaintiff. Having purchased the genuine article from the plaintiff, he had a right to use it as he saw fit. When the plaintiff sold the article he did so without placing any restriction upon the purchaser, and we cannot see any just ground for preventing him either in using the article for the purpose for which it was made and sold or advertising it for that purpose. Again, it was an article that no one but a dentist could use, and the plaintiff must have inferred when he sold the article, that it was wanted for and was to be used by a dentist.

Judgment affirmed, with costs.