18 N.Y.S. 1 | N.Y. Sup. Ct. | 1892
This action was brought to restrain an infringement of a trade-mark. The respondents were manufacturers of cigars, doing business in the city of New York. In July, 1889, they adopted as the designation of the brand of cigars which they manufactured the words, “Nickel-In.”' This designation appeared prominently in their places of business, and was affixed to their packages, and impressed upon their boxes. In the year 1890 one of the defendants, in conjunction with others, opened a cigar store in Brooklyn, which he called the “Nickel-Saved” cigar store. In this store the defendant copied the various devices of the plaintiffs to attract trade, and also attached the words “Nickel-Saved” as a trade-mark to his cigars. The-plaintiffs gave evidence upon the trial showing that persons had been deceived in purchasing the cigars manufactured by the defendant, supposing them to-be those manufactured by the plaintiffs. There can be no contention whatever that the adoption of the trade-mark “Nickel-Saved” by the defendant-was not in the hope that he might deceive the public into purchasing his cigars, supposing them to be those manufactured by the plaintiffs, and which-had acquired a reputation. And the only question which it is necessary to discuss upon this appeal is as to whether the plaintiffs can acquire a trade-mark, in the combination of the words “Nickel-In” in connection with the manufact
O’Brien, J., concurs in result.