25 Barb. 416 | N.Y. Sup. Ct. | 1857
The plaintiffs have been engaged in the manufacture of white lead for more than twenty years, and have been in the habit, for that period, of marking their kegs with their name; adding the words, “ premium lead, warranted pure.” Since 1849, the defendant has been engaged in the same business; he and the plaintiffs manufacturing in Brooklyn, and each having a store in New York. The defendant, at first, labeled his kegs “ Brooklyn White Lead * pure, 100 lbs.” To that the plaintiffs did not object. They knew it, and may be considered as having assented to it, and led the defendant to continue to use that name, and enabled him to obtain a reputation for it as his own, by their acquiescence. As they both dealt in the same article, and both man
The defendant should be enjoined from the use of the word “ company ” or “ Co.” He says others are interested with him in the business. That would justify him in calling his paint by the name of Masury & Co.’s, but not by a title as of an incorporated company, strongly resembling the plaintiffs. He has, within a few years, added to his business the making of zinc paint. He may therefore continue to use the title “ Brooklyn white lead and zinc;” only omitting the name “company,” or “ Co.” The injunction should be so modified.
The order appealed from should also be so modified, without costs.
Mitchell, Roosevelt and Peabody, Justices.]