Bobrow v. Manekin

59 Pa. Super. 334 | Pa. Super. Ct. | 1915

Opinion by

Rice, P. J.,

The learned judge of the common pleas concluded his elaborate and well-considered opinion as follows:' “The conclusion of the court, therefore, is that the use of said label, mark and brand by the defendant in the manner now used and complained of by the plaintiffs constitutes unfair trade competition as against the plaintiffs, and that an injunction should, be issued restraining the defendant from using the word ‘Glad’ as a brand for cigars manufactured by him or sold by him in such a way as to imitate the labels of the plaintiffs used by them upon their brand of cigars known as ‘Bold’ cigars; that a preliminary injunction should be issued restraining the defendant until final hearing from using the word ‘Glad’ as a brand for cigars manufactured by him or sold by him in such a way as to imitate the labels of plaintiffs used upon the brand of cigars known as ‘Bold’ cigars.” As this is an appeal from decree awarding a preliminary injunction, we will not enter into any elaborate discussion of the merits. It is sufficient, for present purposes, to say that to the extent that the decree conforms to the foregoing conclusion we are unanimously of opinion it should not be interfered with. But the second clause of the formal decree subsequently entered, which reads, “restraining the defendant until final hearing from using the word ‘Glad’ as a brand of cigars manufactured and sold by the defendant,” goes beyond the foregoing conclusion of the learned court and is broader than the pleadings and proofs warrant. This is sufficiently shown by the opinion itself, from which we quote: “At the hearing plaintiffs’ counsel averred that the controlling question before the court on the hearing of the rule for a preliminary injunction was not the violation of the plaintiffs’ trade-mark, but was whether the defendant was purposely using the name, which was printed in such a way as to deceive a person of ordinary intelligence, by making such person using ordinary caution believe that he was purchasing the plaintiffs’ product. It could hardly be successfully contended that the word ‘glad’ as a name alone could be taken by anyone for the word ‘bold’ notwithstanding both are words of four letters and that each word contains the letters ‘1’ and ‘d.’ It would appear, however, that it was not the word ‘glad’ which was alone complained of as being evidence of unfair competition by the defendant, but it was the manner in which the word ‘glad’ was used,” etc. This is the correct view, and clearly the injunction should be modified to the extent indicated. And in view of the exceptions filed by the defendant before the formal decree was entered, we cannot say that he is barred by laches from raising this particular objection against the decree on the appeal. Whether he could have had the matter corrected upon final hearing as promptly as he could by appealing is problematical. At any rate, the statute gave him the right to an appeal, and it is our plain duty to consider it. Therefore, the plaintiffs’ motion to dismiss the appeal is denied.

The decree is modified by striking out the words, “restraining the defendant until final hearing from using the word ‘glad’ as a brand of cigars manufactured and sold by the defendant,” and to that extent the injunction is dissolved. As thus modified, the decree is affirmed, the costs of the appeal to be paid by the appellees.