1 N.Y.S. 134 | N.Y. Sup. Ct. | 1888
The injunction granted in this case, the substance of which was embodied in the judgment entered on the 6th of January, 1875, was to the effect that the defendants, Seabury and Johnson, were enjoined from infringing the plaintiff’s trade-marks, “Allcock’s India-Rubber Porous Plasters,” and from the use of the words “Allcock’s India-Rubber Porous,” or either of them. They are perpetually enjoined from affixing or applying, or causing to be affixed or applied, to any plasters manufactured, sold, shipped, or supplied by them, or to the boxes in which the same are put up, the plaintiff's trade-mark words, viz., “Allcock’s India-Rubber Porous,” or either of said words, or any imitation thereof, as the whole or any part of the name or designation of such plasters so manufactured, sold, shipped, or supplied by them, said defendants, their servants, agents, or either of them, and they, the said defendants, their servants, agents, and each of them, are hereby further perpetually enjoined and restrained from affixing or applying, or causing to be affixed or applied, to any plasters manufactured, sold, shipped, or supplied by them, or to the boxes in which the same are put up, any of the trademarks or labels described and set forth in the plaintiff’s complaint herein as being used by the plaintiff, or any of the trade-marks or labels described and set forth in said complaint as being used by the defendants in imitation of the plaintiff’s said trade-marks and labels; and the said defendants, their servants and agents, and each of them, are further perpetually enjoined and restrained from affixing or applying, or causing to be affixed or applied, to any plaster manufactured, sold, shipped, or supplied by them, said defendants, their servants, agents, or either of them, any trade-marks or labels whatever, in violation of the plaintiff’s trade-iharks and labels named in said complaint. The parties stipulated, for the purposes of this appeal, that the defendant Seabury had manufactured and sold certain plasters which he had advertised as follows: “Benson’s Porous Plasters, Benson’s Capcine Porous Piasters; Benson’s Plasters, the Best Porous Plaster, ”—in newspapers, cards, circulars, catalogues, etc.; and it is for this supposed violation of the injunction, and this only, that the defendants were proceeded against. In the view that is taken of this appeal, it will not be necessary to consider in detail any other question than that arising from the use made of The word “Porous” in the mode suggested. It may be assumed that all the preliminaries necessary to put the defendants upon their defense have been fully complied with. There is no pretense that the prohibited words have been employed in any other way than in the modes of advertisement already mentioned, and therefore that none of them was applied or affixed to the plasters, or any of them, or boxes or wrappers containing or covering them.
The judgment enjoins the defendants, as we have seen, from affixing or applying, or causing to be applied, any of the words mentioned to any plasters manufactured, shipped, sold, or supplied by them, or to the boxes in which the same are put up; and this seems to be the extent of the prohibition, although repeated, and in different forms, in the judgment. It embraces an application or affixing to the plasters or labels upon them, or the appliances in which they may be sold, boxes or wrappers, so that the plaster shall not be immediately identified with the word prohibited, and thus, in the purchase or sale or wrapping or boxing up or delivering, be held out as a plaster like, or in imitation of, the plaintiffs; and that is all the pleader had in contemplation when the judgment was prepared. Indeed, it may be doubtful whether, if the prohibition against advertising were asked as a part of the judgment, it
For these reasons the order appealed from is reversed, but without costs.
Van Brunt, P. J., and Daniels, J., concurring.