Lockwood v. Bostwick, 2 Daly 521

Lockwood v. Bostwick

2 Daly 521 | New York Court of Common Pleas | 1869

Daly, F. J.

The defendants were simply the servants of' the company during the period covered by the agreement. The transfer of the wood-cuts to the latter was simply to enable them to place the labels upon the pomade manufactured by *524them under the company’s supervision, and was.not intended to, and did not, have the effect of transferring to the defendants any property in the trade-mark. In fact the defendants by their own acts afterward acknowledged the company’s continuing ownership and right to use the trade-mark. An inspection of the two labels shows that the one afterward used by -the defendants, and the use of which the plaintiffs seek to restrain by injunction, was, in respect to form, color, words, and symbols, so like the former as to make it manifest that the design of the defendants in using it was to deceive, the resemblance being such as would be likely to impose upon ordinary purchasers, according to the rule recognized in Crowshaw v. Thompson (4 Mann. & G. 385). It was alike in the size and form of the label; in the color of the paper, a peculiar, delicate gray tint; the machine or apparatus represented was one that had no existence in fact, but resembling the real machine sufficiently for the difference to escape observation unless upon attentive examination; and the word “Bovina” was substituted for “Bojí-Iwie” printed in the same type and in exactly the same place as the other at the head of the label. The design evidently was to depart from the other sufficiently to constitute a difference when the two were compared, and yet to do it so skillfully that the difference would not be detected by an ordinary purchaser unless his attention were particularly called to it and he had a very perfect recollection of the other label. The design was to deceive, and to obtain, in the manufacture and sale of the article, any benefit or advantage that might be gained by its being purchased for another article of the same description, which was known and distinguished by a particular trade-mark. There could be no other motive, and it was done with the shallow expectation, that the law would not see through the motive, but pronounce that the two labels were not the same, by simply distinguishing the points of difference between them. So far as the object sought could be attained, it would operate to the plaintiffs’ detriment by diminishing the sale of their articles in the market, and they are entitled to be protected by a court of equity from this attempt on the part of rivals to deprive them of the fruits of their industry or enterprise in mak*525ing their own fabric known and recognizable by its distinctive trade-mark. There is a right of property in a trade-mark which is capable of being transferred to another, and the right and title which the company had to this trade-mark passed to the plaintiffs by the assignment.

The motion to dissolve the injunction is denied, and the plaintiffs are entitled to judgment.