37 N.Y.S. 611 | N.Y. Sup. Ct. | 1895
The equities of this case are plainly with the plaintiff.
The evidence leaves no doubt in my mind that the defend-. ant’s desire to use the word Matzoon on his goods is due to the trade meaning which that word has acquired through the efforts of the plaintiff, and not at all to the descriptive character of the term. Indeed, until the plaintiff’s use of it, it had no descriptive character which anybody in this country could comprehend except the few hundreds of persons here who were acquainted with the Armenian language. To every one else it was a fanciful or arbitrary designation without any meaning of its own. The plaintiff, by attaching it to his preparation of fermented milk, has, after many years of labor, given it a signification which is now well understood by the trade and the public, and the defendant, by marking his compound in the same way, seeks to avail himself of the benefit of the plaintiff’s industry. The resemblance between jhis labels and those of the plaintiff satisfies me that the defendant must have intended to induce purchasers to buy his preparation under the impression that it was the preparation of the plaintiff.; and, under such circumstances, the plaintiff should be protected unless there is some rule of law which stands in the way. Auheuser-Busch Brewing Assn. v. Piza, 24 Fed. Rep. 149.
The rule invoked by the defendant is that a word is incapable of exclusive appropriation as a trademark which was originally descriptive of the article to which it is applied, . or which has become incorporated into the English language so as to be recognized as descriptive of the article. Matzoon, he contends, is the Armenian name for fermented milk, not only in the semi-solid form in which it is most generally made, but also in the less common liquid form. He claims that this term is properly descriptive of the liquid form in Armenia, and in
. The word maadzoon seems most nearly to represent in' English the sound of the name which Armenians give to the semi-solid or custard-like preparation of fermented milk made-in Turkey. There, is a conflict of evidence, as to the applica-. tion of this term to. the same substance when liquified. ; The fact seems to be'that when reduced to the liquid state, either intentionally or by shaking iñ the process of transformation, it is still denominated maadzoon in some districts* while in others it is.then called'toare.
': When the plaintiff came tqput'his liquid preparation upon the market in this country, lie adopted as. its designation an inaccurate transliteration qf the .name most- commonly applied by Armenians to the semi-solid product. Matzoon does not correctly indicate' the' lettering • of the Armenian word or its sound,- to judge from the testimony of the numerous-Armenian witnesses in this' case. .There' is probably siifficient resem-: Manee in .the sound,, however, to. signify to Armenians! that the preparation' was some sort "of fermented, mük.
, Brit I do not' think that such, a. term can properly be. ‘ regarded as descriptive in this country..' It would be abso-'' lately meaningless to all but a little group of Armenians in the millions of inhabitants of the United States. It Would he equally meaningless in most of Europe. A. Choctaw word "Would .signify just as much.' To' the medical profession, among whom the' plaintiff Sought approval. for his product,' aiid' to the drug trade, the name matzoon was practically an. arbitrary or fanciful designation. It was. not incorporated into the English, language; it was derived from-a language hardly known here,, and to the vast majority of our people it meant nothing.' Hence, the rule .upon'which the defendant relies has np. application here.
There'.must be judgment for the plaintiff in accordance with the findings proposed in his behalf, as modified -and " signed.. , The injunction,.however, will not go .to' the extent
Ordered accordingly.
