| Mass. | May 28, 1930
This is a bill in equity to restrain the defendant from the use of a label reasonably to be mistaken for a label recorded by the plaintiff under G. L. c. 110, § 8. The fundamental issues in such a proceeding are whether the plaintiff has the right which he asserts, and whether the label of the defendant so nearly resembles the label recorded that it is likely to deceive as a counterfeit or imitation of the plaintiff’s. The latter issue is one of fact. Where, as here, the evidence is not reported, the finding of the trial judge will not be disturbed unless clearly wrong or contrary to law. Sullivan v. Roche, 257 Mass. 166" court="Mass." date_filed="1926-10-13" href="https://app.midpage.ai/document/sullivan-v-roche-6437675?utm_source=webapp" opinion_id="6437675">257 Mass. 166. Corkum, v. Clark, 263 Mass. 378" court="Mass." date_filed="1928-05-23" href="https://app.midpage.ai/document/corkum-v-clark-6438510?utm_source=webapp" opinion_id="6438510">263 Mass. 378, 382.
The right of the plaintiff to the label he set out, as against the defendant, had been decided in earlier proceedings between them. Neither party appealed from the decree then entered. The right was adjudicated. It was not open to the defendant to challenge it. Nor could he thereafter question the decision that the label used by him and denounced by the decree was an infringement. He modified it; and this suit resulted. It was.open to him to show, if he could, that the modified label was free from the characteristics declared to be wrongful by the earlier decree. He has failed. He contends that the effect of the decree is to deny him the use of the word “Victory,” which he has long used in his trade name. In this he is wrong. No right to
Decree affirmed with costs.