Vulcan v. Myers

• Citation: 34 N.E. 904,139 N.Y. 364
• Parties: TAENDSTICKSFABRIKS AKTIEBOLAGET VULCAN v. MYERS et al.
• Decision Date: 03 October 1893
• Court: New York Court of Appeals

139 N.Y. 364

34 N.E. 904

TAENDSTICKSFABRIKS AKTIEBOLAGET VULCAN

v.MYERS et al.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from supreme court, general term, first department.

Action by the Taendsticksfabriks Aktiebolaget Vulcan against Elijah Myers and I. Harby Moses to restrain the infringement of a trade-mark. From a jugment of the general term (19 N. Y. Supp. 1000) affirming a judgment for plaintiff, defendants appeal. Affirmed.

Billings & Cardozo, (Michael H. Cardozo, of counsel,) for appellants.

H. Aplington, for respondent.

MAYNARD, J.

The plaintiff is a Swedish corporation engaged in the manufacture of matches, and is entitled to the exclusive use of a trade-mark consisting of a label affixed to a small, rectangular box containing the matches, and having printed or stamped upon it in red colors the words, ‘The Vulcan,’ over a globe, upon each side of which are the representations of three medals awarded to the plaintiff at the Swedish exhibition at Gothenburg in 1871, at the Russian exhibition at Moscow in 1872, and at the Austrian exhibition at Vienna in 1873, the obverse and reverse surfaces of the medals being both exhibited. There is also printed underneath the name, and over the globe, the words ‘Damp Proof,’ and beneath the globe the words ‘Trade-Mark,’ and at the bottom of the label the words ‘Paraffin Matches.’ This trade-mark was adopted by the plaintiff in 1883, and has been used by it continuously ever since, and it derives large profits from the sale of its matches under it. The defendants are dealers in matches, and imported from Holland, in 1889, matches put up in boxes identical in size and general appearance with those used by the plaintiff, and bearing upon them a label also printed or stamped in red ink, and with letters of the same style as those upon the plaintiff's boxes, and upon which appear the words ‘The Vulture,’ and the picture of a vulture with outspread wings, and a facsimile of the medals awarded to the plaintiff, and the words ‘Damp Proof,’ ‘Trade-Mark,’ and ‘Paraffin Matches,’ arranged in the same way as upon plaintiff's boxes. The trial court has found that this use of the defendants' label is an imitation of the plaintiff's trade-mark, and so closely resembling it that when used upon boxes containing matches it has a tendency to create confusion in the market, and mislead and deceive the public. From an examination of the specimens submitted to us, we think that this finding is fully supported by the proofs. The similarity between the names employed and the devices used, the identity of the medals represented, and the correspondence of size, color, and general appearance, when combined upon the wrapper of a box, are so close and striking that an...