54 A.D. 345 | N.Y. App. Div. | 1900
• "The plaintiff, a domestic corporation, and its predecessor, have been engaged since 1889 in the importation and manufacture of cigarettes in the city of New York. Prior to the year 1891 these cigarettes were manufactured in Egypt and imported to this country by plaintiff’s predecessor, but in 1891 the plaintiff’s predecessor commenced the manufacture of these cigarettes in this country. About the year 1889 he adopted a label for his goods which, with some unimportant changes, has been continued, and the plaintiff’s cigarettes had become well known in the trade' as “ Egyptian ..Deities.” The plaintiff alleges thát he adopted also, as a distinguishing mark for his goods, .a distinctive box of somewhat peculiar design, that was different from any package or box then or prior to that time used in connection with cigarettes; and he also adopted a device printed upon each cigarette. Prior to January,11890, the plaintiff’s predecessor had in his employ the defendant/Aaron S. Sulzberger as a salesman, to; sell goods for the plaintiff to retail dealers in the city of New York and elsewhere, and the defendant Karakitson, as foreman of the tobacco leaf department, whose duty it was to prepare the tobacco used in the manufacture of these cig- ' arettes, and that these defendants, by reason of the employment, acquired knowledge of the plaintiff’s business and customers. It also appears that in the month of April, 1900, these defendants organized the defendant corporation, which at once went info business in competition with the plaintiff; that they manufactured cigarettes of the same general character and size, putting them up in similar packages; prepared in imitation of the plaintiff’s packages, and adopted a label which, if not 'an exact imitation-of the plaintiff’s label in its general characteristics, closely resembles it. It is true
Upon the affidavits submitted to the court below, 1 am satisfied that this was a deliberate attempt to devise a package, and label Avhich would enable the defendants, with their knowledge -of the plaintiff’s trade and -customers, to sell their goods as the goods of the plaintiff. What was said by the Court of Appeals in the case of T. A. Vulcan v. Myers (139 N. Y. 364) applies. “The similarity between the names employed and the devices used-; the identity of the medals represented and the correspondence of size, color and general appearance, when combined upon the wrapper of a box, are so
The order appealed from should be reversed, with ten dollars costs and disbursements, and an injunction granted restraining the defendants from using the label referred to in the complaint, with ten dollars costs, upon giving an undertaking in twenty-five hundred, dollars.
Rumsey and McLaughlin, JJ., concurred; Van Brunt, P. J., and Hatch, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion for injunction granted, with ten dollars costs, upon applicant giving an undertaking in twenty-five hundred dollars.