Summary
In Colman v. Crump (70 N.Y. 573), quoted with approval in Burt v. Smith (181 id. 1), in speaking of trade marks the court said: "If the false is only colorably different from the true; if the resemblance is such as to deceive a purchaser of ordinary caution; or if it is calculated to deceive the careless and unwary; and thus to injure the sale of the goods of the proprietor of the trade mark, the injured party is entitled to relief.
Summary of this case from Salvation Army in U.S. v. American Salvation ArmyOpinion
Argued September 18, 1877
Decided October 2, 1877
Wm. Henry Arnoux, for the appellant.
Andrew Boardman, for the respondents.
The plaintiffs do not claim to have copyrighted their labels, and it was not, therefore, incumbent on them to show that they had complied with the act of Congress on that subject. They merely claim to be protected in the use of a figure of a bull's head, printed on their labels as a trade-mark; a symbol by which mustard, the product of their manufacture, is known and distinguished from that manufactured and sold by others, adopted by them many years since; and to which symbol, as a trade-mark, they claim to have acquired by use the exclusive right. It is used, not to designate the quality of the article or the place of its manufacture, but the plaintiffs as the manufacturers, to distinguish their mustard from the same article manufactured by others,
A party may have a property in — that is, an exclusive right to use — a "name, symbol, figure, letter, form or device," to distinguish goods manufactured and sold by him from those manufactured and sold by others, or to indicate when or by whom, or at what manufactory the article to which it is affixed is manufactured. This property right the courts will protect by injunction, and for its invasion the law gives compensation in damages. It is an infraction of that right, to print or manufacture, or put on the market for sale, and sell for use upon articles of merchandise of the same kind as those upon which it is used by the proprietor, any device or symbol which by its resemblance to the established trade-mark will be liable to deceive the public, and lead to the purchase and use of that which is not the manufacture of the proprietor, believing it to be his. It is not necessary that the symbol, figure, or device used or printed and sold for use, should be a fac simile, a precise copy, of the original trade-mark, or so close an imitation that the two cannot be distinguished except by an expert, or upon a critical examination by one familiar with the genuine trade-mark. If the false is only colorably different from the true; if the resemblance is such as to deceive a purchaser of ordinary caution; or if it is calculated to deceive the careless and unwary; and thus to injure the sale of the goods of the proprietor of the trade-mark, the injured party is entitled to relief. Neither is it necessary to establish a guilty knowledge or fraudulent intent on the part of the wrong-doer. It is sufficient that the proprietory right of the party and its actual infringement is shown. These general principles are well established, and the right of the plaintiffs to adopt the arbitrary symbol of a bull's head as their trade-mark, and to be protected in its exclusive use, cannot be questioned. It is not like the adoption of some name, title, or description which has respect to place or quality, and which may be equally true when applied to articles manufactured or sold by others. ( Congress, etc., Spring v. High Rock Spring, 45 N.Y., 291; Newman v. Alvord, 51 id., 189; Millington v. Fox, 3 M. C., 338; Knott v. Morgan, 2 Keen, 213; Leather Cloth Co. v. Am. L.C. Co., 11 H.L. Cases, 523; Cransbey v. Thompson, 4 M. G., 356; Upton on Trade-marks, 9; Canal Co. v. Clark, 13 Wall., 311.)
The learned Judge has, upon satisfactory evidence, found and reported every fact material or necessary to sustain the judgment. He had before him evidence, which we have not. Very many of the exhibits and specimens of the defendant's labels are not in the record, but we doubtless have all that the parties deemed material to place before a court of review having jurisdiction only of questions of law. There was some conflict of evidence, but not such a discrepancy as to lead us to doubt the correctness of the conclusions of the trial judge — if we had authority to review his findings — which, there being evidence to support them, we have not. The judge has found that, some seventeen years before the bringing of the action, the plaintiffs adopted, and from that time have used, as their trade-mark, and to distinguish mustard of their manufacture from all others in the markets of this country, as well as other parts of the world, the symbol or device of a bull's head; and that it had become a well-known sign and mark of their mustard, and that it had not before then been adopted or used as a trade-mark for the same article of merchandise by any one. It would seem that it has not since been legitimately used as a trade-mark upon mustard, except by the plaintiffs.
The evidence to show the use of the device by the plaintiffs as a trade-mark upon packages of mustard prior to any other manufacture of the article, is not controverted by any other satisfactory evidence. Its use by others had been casual and occasional, and as an ornament rather than as a distinguishing mark of the mustard manufactured and sold, and it does not appear to have been used as a trade-mark as that term is understood. Recently, it has been used rather as a means of availing the parties using it of the reputation of the plaintiffs' "bull-head mustard" than for any other purpose, as may be inferred from the evidence. The judge has also found that the symbols and devices printed and sold by the defendant are imitations of the plaintiffs' trade-mark, calculated to deceive the public. Slight variations in the figure of the head, by which an expert might detect a resemblance to an animal of a different descent or breed in the simulated trade-mark from that which might be supposed to have been in the eye of the artist in designing the original, cannot avail the defense. There is a general resemblance in all the bulls heads printed and made exhibits in this action. Any difference is colorable, and would not prevent the ordinary purchaser from being deceived. The fact that the same device is used upon other articles of merchandise, does not take from the plaintiffs their right to its exclusive use on this one article of their manufacture. The question presented by the record is one of fact and not of law, and upon the facts found upon competent evidence, the plaintiffs were entitled to their judgment. There can be no pretense upon the evidence that the plaintiffs use their trade-mark to put off upon the public a spurious or fraudulent article. The mustard of their manufacture is composed of the same materials, and in like proportions, so far as is shown, as that of other manufacturers and dealers, and has acquired a high reputation in the market, of which others are willing to avail themselves. Their mustard is the mustard of commerce, the composition of which is well understood, and the different grades and mixtures are to meet the different wants of the community and the purposes, whether medicinal or as a condiment, for which it is used. There was no error in the admission or exclusion of evidence upon the trial.
The judgment must be affirmed.
All concur.
Judgment affirmed.