89 N.Y. 292, Enoch Morgan's Sons Co. v. Troxell

Citation:89 N.Y. 292
Party Name:ENOCH MORGAN'S SONS COMPANY, Respondent, v. BENJAMIN F. TROXELL et al., Appellants.
Case Date:May 30, 1882
Court:New York Court of Appeals
 
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Page 292

89 N.Y. 292

ENOCH MORGAN'S SONS COMPANY, Respondent,

v.

BENJAMIN F. TROXELL et al., Appellants.

New York Court of Appeal

May 30, 1882

Argued May 3, 1882.

Page 293

COUNSEL

E. More for appellants. Defendants cannot be restrained in the use of their trade-mark, although it has a general resemblance to plaintiff's, as they have neither copied nor simulated plaintiff's, nor appropriated any thing they had not a right to. (Amoskeag Case, 2 Sandf. 606, 608; 58 N.Y. 233; Gillott v. Easterbrook, 47 Barb. 455; Wolfe v. Burke, 56 N.Y. 115, 122; 7 Lans. 151; Brown on Trade-marks, § § 271-2; Faber v. Faber, 2 Abb. [ N. S.] 115; Falkenburgh v. Lucy, 35 Cal. 52; Coddington on Trade-marks, § § 19, 159; Blackwell v. Wright, 73 N.C. 310;

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L. R., 41 Chy. 359; 46 Id. 707; 42 L. T. Rep. [ N. S.] 857; Cook v. Starkweather, 13 Abb. Pr. [N. S.] 392; Moorman v. Hoge, 2 Sawyer, 78; High on Injunctions, p. 400, § 690; Frese v. Buchaf, 13 Off. Gaz.; 17 Barb. 608; 4 Abb. 114; 61 N.Y. 74; 35 Cal. 52; 44 Mo. 173; L. R., 13 Chy. Div. 181; Enoch Morgan's Sons v. Schwackhoffer, 55 How. 38.) Where there is a partial infringement, where defendant has attempted to imitate something which was plaintiff's exclusive property, the rule, as applicable to shelf goods, is that the purchasers must read the label, unless it is sold and known by the mark. (1 How. App. Cas. 558; 2 Sandf. Ch. 625; 11 H. of L. Cases, 36 L. J. 504; Coleman v. Crump, 70 N.Y. 578.) If defendants' package is fair competition the judgment cannot be sustained, either as to the damages or injunction, on the outside pretense that they caused their goods to be sold as plaintiff's. (Matthews v. Coe, 49 N.Y. 61.)

Samuel Hand for respondent. A manufacturer of a valuable commodity, who affixes any indicia thereto, whereby the genuineness of its origin is assured, thereby becomes vested with an exclusive right to use such indicia in the sale of such commodity. (Colloday v. Baird, 7 Upp. Can. L. J. 132; McAndrews v. Bassett, 10 L. T. [ N. S.] 442; Appolinaris Co. v. Norris, 23 Id. 242.) The character of the mark is not of judicial prescription. Whatever the manufacturer first appropriates, a court of equity will protect. (Wotherspoon v. Currie, 27 L. T. [ N. S.] 303; Coleman v. Crump, 70 N.Y. 573; Enoch Morgan's Sons' Co. v. Schwachofer, 55 How. 37; Same v. Troxell, 23 Hun, 632; Perry v. Truefitt, 6 Beav. 66; Coats v. Holbrook, 2 Sandf. Ch. 594; Williams v. Johnson, 2 Bosw. 6; Cook v. Starkweather, 13 Abb. Pr. [N. S.] 392; Popham v. Wilcox, 38 N.Y.S. Ct. 280.) If a trade-mark may be constituted of labels, names, marks, letters, symbols, form, appearance, color, style, rim, glazed or shellacked preparations, packages, cases and vessels, then such mark is infringed by the use of any such marks thereof, a fortiori may it be infringed by the use of that which is the most conspicuous

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and striking portion thereof. (Hostetter v. Vanwinkle, 1 Dill. 329; Wotherspoon v. Currie, 27 L. T...

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