93 N.Y. 331 | NY | 1883
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Letters or figures which, by the custom of traders or the declaration of the manufacturers, are only used to denote quality, are incapable of exclusive appropriation, but are open to use by any one, like the adjectives of the language. (Amoskeag Co. v. Trainer,
In Corwin v. Daly (7 Bosw. 233), the words "Royal," "Imperial" and "Princely" are referred to as words denoting the quality of an article — as indicating its high degree of excellence, such as "superior, "superfine," "extra," and similar words, and the word "Royal" is to be found of frequent use for that *335 purpose, in many cases in the books. It was used by the defendants and their predecessors as applied to mustard which they sold as "Royal Standard" mustard, before its adoption by the plaintiffs. In Braham v. Bustard (1 Hem. Mil. 447) the word "Excelsior," in the name "Excelsior White Soft Soap," was sustained as a trade-mark. It was objected that this was merely a mark of quality, but Sir W. PAGE WOOD overruled this objection and held that it was used to denote origin, because the plaintiff did not sell two or three qualities of soap, calling one of them Excelsior, but only one which they denoted the Excelsior White Soft Soap, and that it was like the words "Albert," "Victoria," "Eureka," etc., an arbitrary designation for the sake of distinction. In the present case, however, it appeared upon the plaintiff's own showing, in the testimony of Mr. Zeigler, that when their predecessors, Zeigler Seal, commenced putting up flavoring extracts, they did not use the word "Royal," but various brands, some being called "Concentrated Extracts," and some "Zeigler Seal's Extract;" that afterward they put up some under the name of "Royal," and that they used that word as a distinguishing mark, and that a reputation was established for it as the finest quality the market afforded — one of the favorite qualities. On cross-examination Mr. Zeigler being asked how he came to use the word "Royal," explained that at that time they were handling royal baking powder, and they took it to designate a certain grade of extracts; that they had two or three other brands; one was "London," one "English," and the third "Royal;" that the word "Royal" was applied to a specific article or quality, and the other terms to different qualities or grades; that the "English" brand was the best up to 1873, and then they changed around and made the "Royal" their best grade, that the "London" had always been the poorest. Mr. Wooden, the plaintiff's salesman, testified that the plaintiff did not designate the different grades of its extracts as first, second and third, but in a different way; that one was called "London," another "English," and the other "Royal," and that the name designated the grade; that the "Royal" was *336 the best, and that it only appeared in connection with the name of the plaintiff — The Royal Baking Powder Company — as the manufacturer. Mr. Hoagland, the president of the plaintiff, testified that the name "Royal" was identified with its goods, as indicating a grade of goods of the highest quality.
We think this case comes within the principle of the case ofAmoskeag Mfg. Co. v. Trainer (
In the case of Hier v. Abrahams (
The motion to dismiss the complaint should, we think, have been granted.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except ANDREWS, J., absent.
Judgment reversed.