200 F. 324 | S.D.N.Y. | 1912
In 1910 the complainant terminated the exclusive selling agency of the defendant, as it might properly do. Thereafter for 18 months the defendant continued selling the stoves on the same terms as other local agents. Thereupon dissatisfied with these arrangements, the defendant began to make a ship stove of the same size, of the same appearance, and for the same special use as the complainant’s, merely changing the old and perfectly well established trade-mark, “Shipmate” to “Messmate.” Of course, the imitation is not exact; it never is in such cases. The details of the stove have been varied in trifling regards, and the maker’s name has been put on the hearth. All that is almost a convention, when you appropriate another man’s mark; for there must be some color of good faith, some defense to i put forward. Minor differences are supposed to help over hard places. Here the words are quite the same in suggestion, when applied to the galley stove 'of a ship. Each means that the stove is the crew’s companion. It is fatuous to distinguish between the mess and the ship in this connection. In sound, too, though I should not think that essential, the two are quite near enough to confuse. It is impossible to mistake the defendant’s purpose, the ve^ ancient desire to trade on another man’s name and reputation. The unctuous disclaimers in the affidavits are an added indication to those familiar of how true the case is to type.
A writ pendente lite will go against any use of “Messmate.” The complainant will not care, I assume, to press the point of unfair trade, which is not so clear.
