Butler-Butler, Inc. v. Marcoglou

Full title: BUTLER-BUTLER, INC., Plaintiff, v . NICHOLAS E. MARCOGLOU, Appellant. In…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 30, 1915

170 App. Div. 762 (N.Y. App. Div. 1915)

156 N.Y.S. 467

Opinion

December 30, 1915.

William Harman Black, for the appellant.

Theodore M. Crisp, for the respondent American Tobacco Company.

SMITH, J.:

Defendant has been charged with contempt in disobeying an injunction contained in a judgment in which the restraining clause reads as follows:

"It is hereby adjudged and decreed, that the defendant, his assigns, attorneys, agents and employees and each of them, be and they are hereby restrained from manufacturing, issuing or using any cigarette box, package, or container, red in color, with a white border around the edges thereof, and containing any design, coat-of-arms, monogram or word or words (especially the word `Kemall'), resembling the package, box or container issued and used by the plaintiff, in the sale of its cigarettes known and described as `Pall Mall Famous Cigarettes,' or in any way resembling the designs, monograms, coats-of-arms or words used by the plaintiff on its said cigarette boxes, as more particularly shown in Exhibit `A' filed with the complaint herein."

It will be noticed that the prohibition is against the use of a cigarette package red in color, with a white border around the edges thereof and also containing any design, coat-of-arms, monogram or word or words similar to those appearing upon the boxes in which are sold the "Pall Mall" cigarette. While the color of the box manufactured by the defendant and the white border are similar in appearance to those in which are sold the "Pall Mall" cigarette, it is clear that the boxes do not contain either design, coat-of-arms, monogram or words similar to those used upon the boxes in which the "Pall Mall" cigarettes are sold. We are of opinion that the defendant's package complained of in no way so resembles the plaintiff's that in using the same the defendant is guilty of a violation of the injunction contained in the judgment above quoted.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

INGRAHAM, P.J., LAUGHLIN, CLARKE and DOWLING, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.