Notaseme Hosiery Co. v. Straus

• Decision Date: 10 November 1913
• Parties: NOTASEME HOSIERY CO. v. STRAUS et al.
• Court: U.S. District Court — Southern District of New York

209 F. 495

NOTASEME HOSIERY CO. v. STRAUS et al.

United States District Court, S.D. New York.

November 10, 1913

James H. Griffin, of New York City (Robert M. Barr and E. Hayward Fairbanks, both of Philadelphia, Pa., of counsel), for plaintiff.

Wise &amp Seligsberg, of New York City (Edmond E. Wise, of New York City, of counsel), for defendants.

LACOMBE Circuit Judge.

The Court of Appeals was clearly of the opinion that a case of unfair competition had been made out. The two names 'Notaseme' and 'Irontex' are wholly dissimilar, but mere inspection of the two labels with their panels and contrasting colors showed quite satisfactorily that the designer of the later label tried to make it so nearly like the earlier one that it would be likely to deceive purchasers. So close a copy of an earlier design is not often seen; manifestly it was not accidently produced, it was devised with some intelligent purpose, and there is no evidence which would warrant the conclusion that such purpose was other than that which the Court of Appeals has found viz., an attempt to compete unfairly with the owner of the earlier label.

This it not a case of the use of a man's own name, which use may incidentally lead persons to suppose that his wares are those they have always associated with another dealer having the same name. There has been a carefully planned and deliberate attempt to simulate successfully the dress or earmark of another's goods.

That constitutes a fraudulent intent, and, when there is such a plain intent, the authorities, as I understand them, allow complainant to recover profits as he would in an ordinary registered trade-mark case.

It does appear, however, from the record, that defendants were not concerned in the original concoction of the label. They sent to a designer in Philadelphia, who, as it happened, had been the one who designed complainant's label, to get up a label for them. When they received his design and commenced to sell their own goods under it, they had not seen complainant's label. During the period when they sold their goods in ignorance of the fact that the label they were using designedly simulated that of complainant, it cannot be held that they had any fraudulent or unfair intent; and intent is essential in case of unfair competition. By the latter part of 1909, however, they were advised of the situation and learned of complainant's label. The fact that thereafter,...