Opinion
Argued April 22, 1880
Decided June 1, 1880
Hugh Porter for appellants. Nelson Smith for respondent.
We can discover no ground upon which the judgment in this case should be reversed. It is not essential to property in a trade-mark that it should indicate any particular person as the maker of the article to which it is attached. It may represent to the purchaser the quality of the thing offered for sale, and in that case is of value to any person interested in putting the commodity to which it is applied upon the market. This was the plaintiff's position. He was not the actual manufacturer of the "Julienne," but the trial court found, and there is evidence to sustain the finding, "that it was manufactured and put up in Paris, expressly for him." He devised the ingredients, and became the importer of the prepared article. To designate the substance, when so prepared for sale, he designed and had engraved and printed, a label, which he attached to the packages containing it. He was interested in the result of sales, and although these were made in the names of third persons, and not his own, his legal right to protection is the same. By any increase in the market demand for the commodity, he was benefited, and by every thing which either supplanted it or diminished the public estimate of it, he was a sufferer. The defendant subsequently offered for sale substantially the same kind of goods, and placed upon the packages a label very similar to that used by the plaintiff. It is in most respects a copy, and except upon close inspection seems to be literally a copy. The plaintiff's monogram "A G." is omitted, but that of one of the defendants, "F.G.," is put in its place. A purchaser having in mind the article he wanted would not notice the difference, while the crown and armorial bearings representing the arms of the city of Paris, with the persuasive words " conserves alimentaires," the word Paris designating its origin, and the word " Julienne" the thing itself, are identically the same. A buyer, however deliberate, would be easily deceived by the resemblance, and while the compound purchased might be equally good as that of the plaintiff's, it is clear that the plaintiff would have lost the sale of his preparation, and so received injury. This is a very brief statement of the plaintiff's case, but it exists in the finding of the trial court, and in the evidence. It is sufficient to warrant and require the judgment which has been pronounced. ( Hostetter v. Vowinkle, 1 Dill. C.C. 329.) The conclusion of the trial judge has received the approbation of the Supreme Court, and is concurred in by us. It stands not only upon principle, but upon authority. The plaintiff acquired the right to the exclusive enjoyment of the trade-mark, not alone by devising it, but "by its prior use and application in the manner in which it has been imitated and employed by the defendant" ( Walton v. Crowley, 3 Blatchf. C.C. 440), and this is so, although the goods were manufactured for him, and not by himself, for he had the same legal right to affix and maintain a special trade-mark in one case as in the other. ( Walton v. Crowley, supra; Amoskeag Manuf. Co. v. Spear, 2 Sandf. 599; Taylor v. Carpenter, 2 Sandf. Ch. 614.) To the same effect is the decision of this court in Congress Spring Co. v. High Rock Spring Co. ( 45 N.Y. 291), where the rule laid down in Amoskeag Manuf. Co. v. Spear, supra, is cited and enforced.
I have examined the evidence contained in the case, and am satisfied that it maintains the findings of fact made by the trial court. Nor do the cases cited by the learned counsel for the appellant support his contention that error was committed in the conclusions of law depending upon those facts. The defendants' claim in this matter seems to be without merit. They appear to have deliberately invaded the plaintiff's right, and the latter to be clearly entitled to the relief which has been given to him by the judgment appealed from. I think it should be affirmed with costs.
All concur.
Judgment affirmed.