Nevertheless while this general proposition is true as to mere color, if color is proven a part of intentional fraud, such fraud will be stopped. It is, however, not the use of a color, but the fraud perpetrated by the intentional appropriation of the color, that is enjoined. Thus we find any number of instances where such fraud has been stopped, cases in which the adoption of a color or combination of colors has played an important part. Coca-Cola Co. v. Gay-Ola Co. (C.C.A.) 200 F. 720, 722; Coca-Cola Co. v. Koke Co., 254 U.S. 143-147, 41 S. Ct. 113, 65 L. Ed. 189; American Chain Co. v. Carr Chain Works, 141 Misc. 303, 252 N.Y.S. 860; Yellow Taxi cases: Buffalo Yellow Cab Co. v. Baureis, 132 Misc. 654, 230 N.Y.S. 343; Yellow Cab Corp. v. Korpeck, 120 Misc. 499, 198 N.Y.S. 864; Yellow Cab Co. v. Jones, 156 La. 837, 101 So. 216; Taxi Yellow Taxi Operating Co. v. Martin, 91 N.J. Eq. 233, 108 A. 763. In considering whether there is such intent to use the color, the fact that the color used is nonfunctional may be some evidence of such intent, as in such case there is no real reason for adopting it. Rushmore v. Badger Brass Mfg. Co. (C.C.A.) 198 F. 379; Wesson v. Galef (D.C.) 286 F. 621.
I cannot do better than to paraphrase the language of Vice Chancellor Learning in Yellow Cab Co. v. Robert Knox, 144 A. 11, in an opinion hot [officially] reported, on a hearing upon the return of an order to show cause why an injunction should not be granted: The case in its essential features is practically identical with that of Taxi & Yellow Taxi Operating Co. v. Martin, 91 N. J. Eq. 233, 108 A. 763. There is not in my mind the slightest doubt but that the resemblance of defendant's taxi-cab to the taxicabs of complainant will necessarily deceive the traveling public by leading people who seek taxicab service to believe that the taxicab of the defendant is a taxi-cab operated by complainant.
I cannot do better than to paraphrase the language of Vice-Chancellor Leaming in Yellow Cab Co. v. Robert Knox, in an opinion not reported, on a hearing upon the return of an order to show cause why an injunction should not be granted. "The case in its essential features is practically identical with that of Taxi and Yellow Taxi Operating Co. v. Martin,91 N.J. Eq. 233. "There is not in my mind the slightest doubt but that the resemblance of defendants taxicab to the taxicabs of complainant will necessarily deceive the traveling public by leading people who seek taxicab service to believe that the taxicab of the defendant is a taxicab operated by complainant.
Koplin v. Anderson, 88 Ill. 120; People v. Hamilton, 17 App. 603. The same conclusion is implied in Harvey v. Dunn, 89 Ill. 585, and Schroder v. Keller, 84 Ill. 46, cited for appellant. For that reason the court below properly excluded the bill of sale offered in this case; and without that she could not lawfully recover. "The position that payment for the property by her, in good faith, and actual possession taken before the executions against her husband came to the hands of appellee, would entitle her to hold it as as against these creditors, is not tenable; without a transfer or a conveyance valid under the statute she could acquire no title from her husband by such means that would be valid as against the rights or interest of 'any third person.' As against existing liens, of course, not even a statutory transfer or conveyance would avail her. The statute was intended for the protection of subsequent purchasers and incumbrancers."
" Nims on Unfair Competition (2d ed.), § 119, p. 238. Cases where the simulation was by color only, or mainly, and in which relief by injunction was granted are numerous. Yellow Cab Co. of Rhode Island v. Anastasi, 124 Atl. (R.I.) 735; Black White Co. v. Weir, 26 Pa. Dist. Rep. 650; Yellow Cab Corporation of Rochester v. Korpeck, 120 Misc. Rep. 499, 198 N Y Supp. 864; American Yellow Taxi Operators v. Quinn, 118 Misc. Rep. 499, 194 N.Y. Supp. 623; Taxi Yellow Taxi Operating Co. v. Martin, 91 N.J. Eq. 233, 108 A. 763; Yellow Cab Co. v. Creasman, 185 N.C. 551, 117 S.E. 787; Yellow Cab Co. v. Becker, 145 Minn. 152, 176 N.W. 345; Du Cros v. Gold, 29 Times L.R. 163; London General Omnibus Co. v. Felton, 12 Times L.R. 213. The Frye case, supra, recognized the general rule that primary colors as such may not be appropriated and monopolized, a rule we shall not here infringe upon, but points out that there are exceptions to the rule.
The words "and entered by me" are contained in the statutory form of acknowledgment of chattel mortgages, but although the word "may" was construed to be imperative in the cases cited, it has been held that the omission of the words "entered by me" does not raise any substantial objection. ( Schroder v. Keller, 84 Ill. 46; Harvey v. Dunn, 89 Ill. 585.) In Durfee v. Grinnell, 69 Ill. 371, a chattel mortgage was in fact executed and acknowledged in 1871, but the justice dated the certificate of acknowledgment in 1872. It was held that it is to be presumed that any person examining the justice's docket would have found the mortgage described by the proper date.
" See, also, Samson Cordage Works v. Puritan Cordage Mills (C.C.A.) 211 F. 603 et seq, L.R.A. 1915F, 1107; Hiram Walker Sons v. Grubman (D.C.) 222 F. 478; Yellow Cab Co. v. Becker, 145 Minn. 152, 176 N.W. 345; Taxi Yellow Taxi Operating Co. v. Martin, 91 N.J. Eq. 233, 108 A. 763; Yellow Cab Co. v. Creasman, 185 N.C. 551, 117 S.E. 787, 28 A.L.R. 109; Carter Transfer Storage Co. v. Carter, 106 Neb. 531, 184 N.W. 113; Aultz v. Zucht (Tex.Civ.App.) 209 S.W. 475; United Cigar Stores v. United Confectioners, 92 N.J. Eq. 449, 113 A. 226, 17 A.L.R. 779; Barton v. Rex-Oil Co. (C.C.A.) 2 F.2d 402, 40 A.L.R. 424.
This same principle is upheld in Nims on Unfair Competition ([2d ed.] 28-30) and by numerous decisions of the courts. In Taxi Yellow Taxi Operating Co. v. Martin ( 91 N.J. Eq. 233) the headnote is as follows: "It is unfair trade, for which an injunction will issue, for competitors to paint their taxicabs so that by the ordinary patron they are not distinguished from those of complainant which had earned a patronage and good-will under a peculiar and distinctive painting of its cabs, the predominant feature being the conspicuous yellow body. The defendants are barred by their intentional fraud of the plea common property in color.
The views herein expressed will protect the public, preserve the right of the plaintiff and prepare the way for a consistent, systematic and orderly policy in the use of the streets of the city by taxicabs and is abundantly supported by decisions where similar questions have been raised. White Studio v. Dreyfoos, 221 N.Y. 46; Ball v. Broadway Bazaar, 194 id. 429, 435; New York Cab Co. v. Mooney, 15 Abb. N.C. 152 (1884); Black White Town Taxis, Inc., v. Minezelez, 186 A.D. 950; Black White Town Taxis, Inc., v. Aronson, 184 id. 894; Taxi Yellow Taxi Operating Co. v. Martin, 91 N.J. Eq. 233. The case of American Yellow Taxi Operators, Inc., v. Diamond, 202 A.D. 490, is readily distinguishable from the case at bar.
At the conclusion of the hearing, and by consent of the respective parties, defendant's taxicab and one of complainant's taxicabs were brought to the front of the courthouse and viewed by the court for the purpose of comparison. The case in its essential features is practically identical with that of Taxi & Yellow Taxi Operating Co. v. Martin, 91 N. J. Eq. 233, 108 A. 763, except that case was on final hearing; this case is on application for restraint pendente lite. There is not in my mind the slightest doubt but that the resemblance of defendant's taxicab to the taxicabs of complainant will necessarily deceive the traveling public by leading people who seek taxicab service to believe that the taxicab of defendant is a taxicab operated by complainant.