197 N.Y. 66 | NY | 1909
The contract which is the basis of the plaintiff's right to use the name Woodbury entitled them to use that name only when applied to the several commodities expressly specified therein. It leaves the defendants entitled to use that name as applied to any other articles which they manufacture and sell except such as so resemble the articles specified in the contract that they are calculated to deceive and mislead the public to believe that they are identical with those named in the contract. The trial court has found that the article manufactured and sold by the defendants as "Woodbury's New Skin Soap" is thus calculated to deceive and mislead the public. That finding has been unanimously affirmed by the Appellate Division and hence is conclusive upon this court. It follows that the injunction embodied in the judgment is right so far as it is effectual to restrain the defendants from using the name Woodbury in connection with any of the articles specified in the contract and also so far as it restrains them from making and selling "Woodbury's New Skin Soap." It goes too far, however, in forbidding the defendants from using the name Woodbury on other soaps or in connection with other articles where such use is not deceptive or misleading.
The judgment should be modified by striking therefrom the restraining paragraph and substituting therefor the following: "Adjudged and decreed that the defendants John H. Woodbury and the Woodbury-McGrath Company, and their respective agents, servants, attorneys, officers and employees and all persons claiming under them or either of them since June 13, 1901, be perpetually restrained and enjoined from selling or offering for sale the soap known as Woodbury's *68 New Skin Soap or any other soap under such a name or designation, or put up or prepared in such a manner as to be calculated to lead the public or trade to believe that in purchasing said soap they are purchasing Woodbury's Facial Soap or a new brand thereof."
As thus modified the judgment is affirmed, without costs.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Judgment accordingly.