Brown v. Doscher — 80 N.Y. Sup. Ct. 107

Majority

p. 107

David S. Brown and Another, Appellants, v. John H. Doscher, Respondent.

Headnote

Action for infringement of a trade mark — when, although the trade ma/rk and its use are established, a complaint should be dismissed.

In an action brouglit to restrain the use by the defendant of the word “Blizzard,” as an alleged infringement of the plaintiffs’ trade mark on the wrapper used on their soap, the trial court held that the plaintiffs were entitled to the exclusive use of the word “ Blizzard”, as a trade mark for laundry soap, and the exclusive-use of the wrapper which they employed to inclose the cakes of soap, and. found, as one of the facts upon which it based the conclusion that the com

p. 108

plaint should ho dismissed, that the wrapper made use of by the defendant was not calculated to deceive the plaintiffs’ customers, nor intending purchasers of the plaintiffs’ Blizzard Soap nor the public, and that the wrapper had not actually misled any person to buy soap manufactured by the defendant, believing that it was of the plaintiffs’ manufacture.

Held, that the judgment dismissing the complaint was proper.

Appeal by tbe plaintiffs, David S. Brown and Delaplaine Brown, from a judgment of tbe Supreme Court, entered in tbe office of tbe cleric of tbe city and county of New York on tbe 6tb day of ■June, 1893, dismissing the plaintiffs’ complaint, rendered upon a decision of tbe court after a trial at the New York Special Term.

Howla/nd Oox, for the appellants.

John Henry IIull, for tbe respondent.

This action was instituted to restrain tbe use by the defendant of •an alleged infringement of plaintiffs’ wrapper. On tbe appeal from 'the order denying a motion for an injunction pendente lite, this court ¡expressed tbe opinion that tbe wrapper complained of could not be regarded as such an imitation of tlie plaintiffs’ wrapper as would be likely to deceive. The trial court, while bolding that tbe plaintiffs ¡are entitled to tbe exclusive use of tbe word “ Blizzard ” as a trade mark for laundry soap, and tbe exclusive use of tbe wrapper which they employed to inclose cakes of soap, found as one of tbe facts upon which it based tbe conclusion that tbe complaint should be dismissed, that tbe wrapper made use of by the defendant “ is not calculated to deceive plaintiffs’ customers nor intending purchasers ■of plaintiffs’ Blizzard Soap and the public.”

And further, that the wrapper has not actually misled any person to buy soap manufactured by defendant in the belief that it was of plaintiffs’ manufacture.

After an examination of tbe wrappers, we agree with the trial judge that the resemblance is not such that it is calculated to ■deceive the ordinary buyer making his purchase under the ordinary conditions which prevail in the conduct of the particular traffic to which this controversy relates. And a review of the evidence requires a concurrence in his further finding that buyers have not been deceived by it.

p. 109

Plaintiffs were not, therefore, entitled to succeed. (Fischer v. Blank, 138 N. Y. 244 .)

The judgment should be affirmed, with costs.

VaN BeuNt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.

Cases cited

Fischer v. Blank 138 N. Y. 244 N.Y. 1893-05-02 p. 109