84 N.J. Eq. 469 | N.J. | 1915
The opinion of the court was delivered by
The learned vice-chancellor held that the words “non-fluid oil” were descriptive and could not be exclusively appropriated by the complainant, and that as applied to the product marketed by the complainant under that name, they were descriptive. We agree with him that the words are descriptive. It is shown that there were oils like cocoanut' oil, palm oil, and cylinder oils that were non-fluid. There is no reason why any one dealing in those articles should not if he chose call them non-fluid oils, and it may well be that in the progress of knowledge other oils may be produced which shall have the property of being non-fluid; in fact, as will appear, we see no reason why the complainant’s product may not be called a non-fluid oil; if so, the defendant’s product may be called by the same name. The complainant is not entitled to an exclusive property right in ordinary English words which fairly describe a commodity that is or may be on the market.
We disagree with the vice-chancellor in his conclusion that the application of the name non-fluid oil to the complainant’s commodities is a material misrepresentation. The commodities are composed of oil to the extent of seventy-five to ninety-five per cent. By a process called saponification, the particles of oil are supposed to be held in occlusion, so that the resulting product is no longer fluid as the oil was before. In view of the fact that there are substances properly called oils which are not fluid or not always fluid, we see nothing in the meaning of the words non-fluid oil themselves to prevent their application to the complainant’s product. A product composed of oil to the extent of seventy-five per cent, may fairly be called an oil. The fact that it is not pure oil is not important. No one
The product might with propriety be called either an oil or a grease. The meaning of common English words is not determined a priori with scientific accuracy and nicety. Even the lexicographers seem to regard fluidity as a necessary characteristic of an oil, disregarding the existence of palm oil, cocoanut' oil, cylinder oils and vaseline. In the case of an article of commerce the meaning of a term is the growth of common usage of the mercantile community. One man looking at the consistency of the product, not unknown but somewhat unusual for an oil, might well call the article a^ grease; another knowing its actual composition and the mechanical character of the mixture which gave the desired consistency, might well call it an oil. In neither case would a purchaser be deceived. One to whom fluidity was desirable could not help seeing that the complainant’s article was not what he desired; the one to whom oil of such consistency as to be non-fluid, was desirable, would get what he wanted.
The vice-chancellor rightly found that in some, at least, of the defendant’s cans and packages, there was a design to imitate the make-up of complainant’s cans and packages. An examination of those produced before us at the argument justifies the