178 F. 543 | 2d Cir. | 1910
Concurrence Opinion
There is, of course, no infringement of the registered trade-mark of the large fouled anchor with the word “Moore’s” on its shank and “Muresco” on its arms and flukes. But the parties are citizens of different states, complainant asserts that it has a common-law trade-mark, to wit, the word “Muresco,” and the testimony abundantly sustains the finding of the Circuit Court that this word, as used by it since 1892, was “the trade-name of a dry powder used for a nonwashable wall finish, and that its use was so general and well known as to furnish a nickname or adjective defining or identifying the entire list of products of Benjamin Moore & Co., as those of the corporation which sold the powder Muresco.”
It seems to me that “Murafresco” is an imitation of this name, and that mere differences in the characteristics or consistency of defendant’s hot-water calcimine are not material. The only reason why I concur with the conclusion expressed by Judge WARD is that, although the word “Muresco” is itself sufficiently fanciful and nonde-scriptive to be a good trade-mark, it was not open to the complainant when adopted in 1892. Prior to that time — since 187G, as the evidence shows — there was on sale in this country an English-made wall covering of somewhat similar character, which was known to the trade under the name JDuresco,” and such trade-mark had not been abandoned. _ With this latter word already appropriated to such goods as a legitimate trade-mark, no one could, by merely changing its first
1 concur in affirmance.
Lead Opinion
The bill alleges infringement of a registered trade-mark and also unfair competition. The trade-mark is a fouled anchor with the words “Muresco” and “Moore’s Muresco” in connection with it. There is absolutely no imitation of this trade-mark. The only ground of unfair competition is the use of the word “Murafres-co”; there being no effort to make the defendant’s packages resemble the complainant’s or to pass off his goods as theirs. The name “Mura-fresco” was quite naturally arrived at, by shortening the older trade-name “Muralofresco,” by other parties before the defendant had anything to do with the article, and had been used commercially for three or four years before this suit wa¡s brought. There is no proof that the public is deceived, the evidence being to the contrary. The resemblance between the words is so great as to make the case a close one, and evidence of bad faith on the defendant’s part or of confusion on the part of the public would incline us to enjoin its use. Consideration of all the facts, however, causes us to concur with the trial judge.
The judgment is affirmed.
