| N.Y. App. Div. | Jul 1, 1900
The plaintiff is a corporation engaged in the business of .manufacturing and selling stationery, and among other things a letter and invoice file, in connection with which it claims a trade mark right to the use of the word “ Favorite,” printed upon a label claimed to have been adopted as a distinguishing mark applied and affixed to its letter and invoice file and the wrappers thereof. It alleges that it has built up a large business in the manufacture and sale of the files, and that the defendants have infringed its right by adopting for an invoice file made by them a label with the word “ Favorite ” displayed upon it in such a way as to deceive the public, and that they attempt to palm off their goods as those of the plaintiff. The ordinary allegations in actions for the infringement of trade marks are contained in the complaint. An injunction was sought and a claim for damages is also made. The defendants admit that they manufacture letter and invoice files, and that they
The evidence in the case fails to show that the defendants designedly or fraudulently sought to place their goods upon the market as those of the plaintiff. Specimens of the labels used by both parties appear in the record, and it is apparent from an inspection that even a casual observer would not be deceived by or mistake the defendants’ label for that of the plaintiff. The plaintiff’s label consists of a device or design of a circle in which are inclosed the words, “ The Improved, Best, Favorite, Cheapest Letter and Invoice File.” The plaintiff’s name does not appear on it. The defendants’ label is on a plain sheet, differing in color from that of the plaintiff, without the circle, and containing only the words, “ The Favorite Letter & Invoice File.” In design and appearance the two labels are entirely different. There is no question in the case of illegitimate competition or of fraudulent acts upon the part of the defendants, and the only right which the plaintiff could assert is to the exclusive proprietorship of the word “ Favorite ” as a trade mark designation. •
We agree with the trial judge that the word is not one which can be made the subject of an exclusive proprietary fight as a trade mark. It does not indicate either ownership or origin of the goods of the plaintiff. It is only an adjective which, if descriptive of anything, refers to quality. Any one is entitled to describe the articles manufactured and sold by him as being favorite, or desirable, or superior, or unrivaled, or peerless, if he chooses so to do. The adjectives of the English language are the common property of all who speak and write it. There may be such a combination of words as would entitle a person to the use of an adjective in that combination, where there is an arbitrary and fanciful designation, as in the cases of the Sliced Animals in Selchow v. Baker (93 N.Y. 59" court="NY" date_filed="1883-06-19" href="https://app.midpage.ai/document/selchow-v--baker-3609808?utm_source=webapp" opinion_id="3609808">93 N. Y. 59), or Pride cigar in Hier v. Abrahams (S2 id. 519), or Ideal fountain pen in Waterman v. Shipman, (130 id. 301). Those cases proceed upon the principle that where a manufacturer i-ments a new name and applies it to his wares to distinguish them from others and it is not generic or descriptive but arbitrary and fanciful, the right to use the name will be protected as a trade mark. But the word “ favorite,” even in combination with the words, “ best and cheapest,” indicates
The judgment dismissing the complaint was right and should he affirmed, with costs.
Rtjmsey, O’Bbien and Hatch, JJ., concurred; Yah Brunt, P. J., dissented.
Judgment affirmed, with costs.