A. G. Hull, for the appellants.,
Plaintiff cannot appropriate a common or proper name as a trade mark. (Tower v. Stetson, 5 Abb. Pr. [N. S.], 218; 7 Bos., 222; 28 How. Pr., 206 ; 18 id., 64; 25 Barb., 417 ; Burgess v. Burgess, 17 Eng. Law and Eq., 257, in point; Faber v. Faber, 49 Barb., 357 ; id., 588; 3 Sanf., 725; 4 Abb. Pr. [N. S.], 410.) One cannot be enjoined ffom using bis own name, merely because it is similar to that of a rival. (Faber v. Faber, 3 Abb. Pr. [N. S.], 115; Burgess v. Burgess, 17 Eng. Law and Eq., 257; 50 Barb., 236 .) Courts will not sustain an imposition on the public. (See note to case of The Empire Spring Co. v. High Rock Spring Co., in Court of Appeals, as published in 10 Abb. Pr. [U. S.], 349.) Courts are not bound to interfere where ordinary attention will enable a purchaser to discriminate. (Upton on Trade. Marks, 218, 219, 220; vide Partridge v. Mencks, 2 Sandf. Ch., 622 .)
O. O. Egan, for the respondent.
In the case of injunction and other provisional orders, the right of appeal, by section 349,. is simply secured, and is only to be entertained by the courts, so far as to see that the order was made in a case entitling the party to it within established principles, and that the, discretion was not arbitrarily exercised. (Forrest v. Forrest, 25 N. Y., 520 ; Vandewater v. Kelsey, 1 id., 533 .) The facts found by the court below, upon which the right rests, are conclusive, and the order not reviewable. ( Voorhis v. Voorhis, 50 Barb., 119 ; Durant v. Einstein, 5 Robt., 423; 6 Bosw., 213 ; 8 id., 574; Loeschizk v. Peck, 3 id., 700.) As to the right of the plaintiff to protection in his trade mark. (Taylor v. Carpenter, 11 Paige, 292; Burnett v. Phalon, 3 Keyes, 594; 5 Abb. [N. S.], 218; affirming, 9 Bosw., 192 ; Amoskeag Manf. Co. v. Spear, 2 Sand., 599; Curtis v. Bryan, 36 How., 14 -33; 2 Daly, 312 ; Meserole v. Tynberg, 4 Abb. [N. S.], 410; Newman v. Alvord, 49 Barb., 588 ; affirmed in Court of Appeals, 51 N. Y., 189 ; 35 How., 188 ; Faber v. Faber, 49 Barb., 357 ; Howe v. Howe, 50 id., 236; Gillott v. Easterbrook, 47 id., 455; Smith v. Woodruff, 48 id., 438.) The prior use of a device or trade mark, to avail as a defense, must extend to and include the defendants. (Newman v. Alvord & Bailey, 49 Barb., 588 ,.Erie Gen. Term, per Daniels, J.)
A careful examination of the pleadings and affidavits on which this motion was made and opposed, leads me to the same conclusions reached by the court below. The form adopted by appellants, to name and advertise their preparation, which it is conceded, is identical with that made by respondent, seems prima facie, to be a studied effort to mislead the public into the belief that the article is prepared and sold by respondent, or perhaps that the appellants are his successors to the business and reputation, or good will, that respondent has during the last twenty-five years established.
It is true the appellants are the sons of the respondent, but their name is Trust, and not Gouraud. They have the right to describe themselves as Dr. Gouraud’s sons, when any question of genealogy or legitimacy arises, or when their identification as his children becomes important; but they have no legal or moral right to connect that description in the form they have done, with the name of his preparation, changed so slightly as it is in name, for the purpose of misleading the public, and securing a trade designed for, and supposed by purchasers to he given to him. It seems to me that this is the violation of his right and property to which their conduct tends, and they cannot shield themselves from the consequences, by any pretext of filial respect for the name to which in law the father is alone entitled.
For these reasons and those given in the opinion of the court below, the order should be affirmed, with ten dollars costs, besides disbursements.
Daniels and Beady, JJ., concurred.
Ordered accordingly.