19 How. Pr. 567 | The Superior Court of New York City | 1860
The plaintiff’s label is calculated to induce the belief, and probably was designed to induce the belief, that the article in the box on which it is pasted is manufactured in London; that the sole proprietors of it have their place of business at 24 Mark Lane, London; that it is intrinsically so excellent as to secure "the patronage of Her Majesty the Queen; and that the labels have paid the stamp duty required by some English statute.
The truth is, that it is made in New York, and that her majesty the queen is probably ignorant of its virtues, or even of its existence.
In this respect there is a manifest intention to deceive and mislead the public.
Mr. Justice Gardiner in Partridge agt. Menck (Howard’s Appeal Cases, 547), says that “ the privilege of deceiving the public for their own benefit, is not a legitimate subject of commerce, and at all events if the maxim that he who asks equity must come with pure hands, is not altogether obsolete, the complainant has no right to invoke the extraordinary jurisdiction of a court of equity in favor of such" a monopoly.”
The plaintiff’s label, instead of indicating that he is the manufacturer of the article covered by it, represents him
It appears by the defendant’s affidavit, that it is the prevailing belief in this country that ladies’ toilet articles of English or French manufacture, are superior to those made in this country, and that the demand for the former is much better than for the latter.
The plaintiff’s labels therefore contain representations believed to be useful, and which must be known to be false; and to secure to the plaintiff by injunction an exclusive use of such a label, and the exclusive privilege of thereby deceiving the public, is an object to which a court of equity will not lend its aid.
The court does not refuse its aid in such a case from any regard to the defendant, who is using the same efforts and misrepresentations to deceive the public; but on the principle that it will not interfere to protect a party in the use of trade marks which are employed to deceive the public, and to deceive them by fraudulent representations contained in the labels and devices which are claimed to constitute wholly or in part such trade marks.
On this ground the motion for an injunction must be denied.
It can hardly be pretended that the words “ Meen Fun” indicate the manufacturer. Their meaning, if they have any, is not made to appear. They are used to designate an article of skin powder, which, as the plaintiff’s label represents, is prepared by Fabian & Co., in London, and for the sale of which in the United States the plaintiff is the sole agent. The words, “ The celebrated Chinese Skin Powder,” are not well adapted to denote that the article is prepared in New York or by Mr. Hobbs.
If it be true that no property can be acquired in words which only denote the nature or kind of the article, and not the goods, as being the manufacture or property of another; it is difficult to perceive on what grounds any
That these words are understood to mean and represent that the article on which they are found is prepared by the plaintiff, is not established in this case.
But as the motion must be denied on the ground first stated, it is unimportant to enter into a full consideration of this branch of the case.
Motion denied.
