122 N.Y. 65 | NY | 1890
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The business of the parties was of like character, and consisted in dealing in foreign government bonds, mainly those of Germany, Austria, Italy, Russia, France and Belgium. They purchased the bonds there and sold them in this country, where their transactions were mostly had with persons speaking the German language. Amongst the inducements to purchase of the parties, as represented by their published circulars, were those that payments could be made in small instalments, and that there was a chance, by means of a system of lottery drawings in the countries issuing them, to realize something in excess of the amount of the bonds by way of prizes or premiums. It has been held that this was not a lottery scheme within the statutes of this state, and, therefore, the sales made here were not invalid. (Kohn v. Koehler,
In the strict sense of the term, a trade-mark is applicable only to a vendible article upon which it is in some manner affixed or represented as a symbol to indicate the origin or ownership of the article on which it is placed. But the same rules for the protection against infringement are extended to names applied to other callings, or to places of business as to technical trade-marks. (Howard v. Henriques, 3 Sandf. 725;G. H. Mfg. Co. v. Hall,
The well known use of this word as commonly used in its application to business, is such as to render it publici juris. But it is urged that the business of the parties is not banking, and although this term taken by the plaintiffs into their partnership name is generic and descriptively applicable to a class or classes of business, it may in its use by them be deemed arbitrary, and, therefore, as against any person engaged in a similar enterprise to that in which they are employed, the plaintiffs are entitled to the protection of its exclusive use. And in support of this proposition reference is made to the fact found by the referee that the name "International Banking Company" was never used by any other person or corporation in connection with business similar to that in which the plaintiffs were engaged. That may be so, yet the word international is not arbitrary or fanciful in its application to banking, but is descriptive of the character suggested by it, of that business, and it may be deemed to have been intended to have such effect. (Taylor v. Gillies,
The fact that a person may use his name as a trade-mark, and that a corporation may do likewise, is not necessarily applicable to a partnership name which merely indicates a business in which the firm purports by it to be engaged. The use by one person of his name as a trade-mark, would not deny to another having the same name, the right to use his in good faith for such purpose in a similar business, or to mark similar vendible articles. And there are cases where the right to use a name to designate a product is so qualifiedly exclusive that the right to the protection of its use against infringement by others, rests upon the ground that such use by them is an untrue or deceptive representation. This may be applicable to a geographical name designating a locality or district, and which has been adopted by one as a trade-mark and afterwards deceptively used by another upon similar articles. (Newman v. Alvord,
These views lead to the conclusion that the order should be affirmed and judgment absolute directed for the defendants.
All concur except VANN, J., not sitting.
Order affirmed and judgment accordingly.