8 N.Y.S. 414 | N.Y. Sup. Ct. | 1890
The Old Sleuth Library, which is a serial, contains stories, first published in the Fireside Companion, mainly devoted to the description of the feats of a detective known as “Old Sleuth,” of all of which one Harlan F. Halsey is the author. Up to the time of the adoption by the plaintiff of the name “Sleuth,” or “Old Sleuth,” as applied to a character in any of the works of fiction, or as indicative of the name of the publication issued by him, that word was not in common use, even if it existed as an established substantive. The word “sleuth” or “sleuth-hound” does not appear in the first edition of Webster’s Unabridged Dictionary, or in any edition of Worcester until after 1880, and then only in the supplement thereto. Its derivation is probably Icelandic, or at least northern, and comes from the word “slot” which was used in Scotland and the northern countries to indicate, primarily, a track in the snow,"and afterwards a track in the earth as well. It did not find its way into the English dictionaries until very recently, and there is said to be pronounced as though spelled “sloth.” When detached from the word “hound,” to which it is commonly prefixed, it means the track of an animal as the same may be known by the scent. The adoption of this word by the plaintiff seems to satisfy all the requirements made by the law governing common-law trade-marks, as determined by the case of Selohow v. Baker, 93 H. T. 59, which, among the numerous and varied cases upon the subject generally, is perhaps the most instructive for determining the question immediately before us. Even if the word “sleuth” was not new, that is to say, coined by the plaintiff, it certainly was not in common use at the time of its adoption by him as the name of his publication or library. The plaintiff was the first one to use it as applied to his own publications. Of this there is no dispute. It answers the purpose of distinguishing the plaintiff’s works from those of all others. It is not descriptive of the subject-matter of the manufacture or publication. It has no relation to the grade or quality of the novel. It was originally a fanciful and arbitrary word to indicate the publications of the plaintiff alone. By its adoption and use the plaintiff acquired in it a certain property right which is entirely independent of the statute laws pertaining to copyright, and should be protected. It is plain that the defendant has infringed the trade-mark of the plaintiff by the dexterous use which he has made of the word “sleuth” in the publications, the names of which are above recited. Any imitation of the name of the plaintiff’s publication which tends to mislead the reading public would be an infringement, although the imitation was inexact. The circumstance that the defendants do not say that their serial publications are composed of numbers of the Old Sleuth Library, and fail to call it “Old Sleuth,” or “TheSleuth Library,” is unimportant, provided they have used the word “Sleuth,” or “Old Sleuth,” in such a relation as would be apt to mislead and deceive the class of people for whom such publications were written. That such is the effect of their acts is quite clearly established by the evidence.
Happily, no point is made by considerate counsel which requires us to look into the matter of these several publications. The judgment should be reversed, and new trial granted, with costs to the appellant, to abide the event.
All concur.