Leidersdorf v. Flint

50 Wis. 401 | Wis. | 1880

Lyon, J.

Doubtless if the fae-similes of the various trademarks of the parties are disregarded, the complaint states a cause of action in equity for an injunction to restrain the infringement of the plaintiffs’ trade-mark. This is not controverted. But it is urged in support of the demurrer, that, inasmuch as these marks are attached to and really made a part of the complaint, they cannot be disregarded, but have the force and effect of averments; and that they show on their face, notwithstanding averments to the contrary, that no one could be misled, as charged, by the marks used hy the defendant. It may well be that two trade-marks are so entirely dissimilar that a court can properly say on demurrer that one is not and can not he an infringement of the other; and this although the pleading demurred to avei’S that it is an infringement and misleads the public. But to justify such a ruling the dissimilarity should be so marked as to leave no doubt in the mind of the court. 0

We do not think this is such a case. Although in several particulars there are differences between Exhibit A on the one hand, and'Exhibits B and 0 on the other (and this is especially so as between Exhibits A and 0), yet there are some points of resemblance common to all of them. By a mere inspection of them we are not prepared to determine whether B and 0, or either of them, so nearly resemble the plaintiffs’ trade-mark that ordinary purchasers, proceeding with ordinary caution, are likely to be misled thereby. This, we understand, is the test of infringement in such, cases. Much less are we prepared to hold that there is no such resemblance in the face of the positive averments in the complaint that there is. From an examination of some of the cases we are led to believe that the usual practice is to reserve the question of infringement until the coming in of the proofs. In cases of any doubt this seems to be the better and safer practice; for the evidence will undoubtedly throw more or less light on the question. "We have concluded to adopt that course in this case. Hence, without intimating any opinion as to whether the jfacsimiles of defendant’s trade-marks, considered alone, are or are not infringements of plaintiffs’ trade-mark, we hold, for the purposes of the demurrer, that the complaint states a cause of action in equity. This leaves the question of infringement to be determined as an original question upon the pleadings and proofs, in case the defendant answers denying the infringement.

The other cause of demurrer assigned, to wit, the improper joinder of several causes of action, was not argued by the learned counsel for the defendant. It is quite apparent that there is no such misjoinder in the complaint.

By the Oouft.— The order overruling the demurrer is affirmed.