85 F. 643 | U.S. Circuit Court for the District of Southern New York | 1898
In causes of this character it is the consuming purchaser who is most likely to be misled; the large dealer is usually sufficiently well informed to protect himself. The affidavits, therefore, of the other candy dealers, submitted by defendant, are not persuasive. This court is satisfied that before the defendant’s advent in this city the chocolate creams made by complainant and its predecessor in Chicago were known to and sought after by persons here, sufficiently, as the papers show, to induce them to go to the trouble of individually importing them. As this demand was apparently confined to the consuming public, it may he difficult to show it directly otherwise than by the importations; but defendant’s own actions supply any deficiencies in this line of proof. He states'in his affidavit that when he had made up his mind to go into the candy business in New York he applied to the Allegretti Chocolate Cream Company to get it to engage him as its “New York representative.” When this request was refused, he straightway betook himself to Allegretti & Co., to whom he made a similar request, successfully. Unless he was convinced that the name “Allegretti” would be of some use in opening a new candy store in New York, it is difficult to understand why he was so solicitous to obtain the right to use it.. It appears that defendant-sells only the candy of Allegretti & Co., of Chicago, and that there is an Allegretti in such firm. This Allegretti is entitled generally to sell his candies under his own name, either individually or in connection with partners, hut in so doing he must he careful not to do anything calculated to delude the public into the belief that his goods are those of some one else. There is sufficient indication in the papers that the younger Allegretti had endeavored to create a confusion as to the identity of the chocolate creams manufactured by himself and by the complainant, respectively. The court of appeals in this circuit, following the English courts, has formulated a convenient rale applicable to cases of this kind (Baker v. Sanders, 26 C. C. A. 220, 80 Fed. 895), which saves complainant’s rights,, and works no hardship to an honest defendant. Such rule may be followed here.
