
    The Charles S. Higgins Co., App’lt, v. The Higgins Soap Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Trademark—Use of similar name.
    Charles S. Higgins and another sold to the plaintiff the property used by them in the manufacture of soap, together with the good will of the business and trademarks, the bill of sale providing that so long as Higgins-was employed at a specified salary, he would not make or sell soap in Brooklyn except for plaintiff. The employment having ceased, he, with others, formed the defendant corporation and opened a place of business-in Brooklyn. Plaintiff’s soap is sold under the name of “ Chas. S. Higgins’ German Laundry Soap,” while defendant’s is marked “ Higgins Soap-Co., Original Laundry Soap, Chas. S. Higgins, Prest.” and the labels are of different colors. Held, that these facts made out no case for an. injunction.
    Appeal from judgment dismissing the complaint on the merits.
    Action to restrain defendant from manufacturing or selling soap or like products within the state of New York under the name of Higgins Soap Co.
    
      H. Aplington, for app’lt; Jesse Johnson, for resp’t.
   Dykman, J.

William B. Higgins started a business of manufacturing soap in 1846. Charles S. Higgins, his son, became subsequently a partner with his father in the business. After the death of the elder Higgins the business was acquired by Charles S. Higgins and John J. Morgan. They continued such owners-until December, 1891, when the plaintiff was organized as a domestic corporation for the manufacturing and selling soap. The proprietors, Higgins and Morgan, then assigned the property used in the manufacture of soap by them, real and personal, with the good will of the business, with the trade-marks and all names and devices employed in distinguishing the manufactured product and the right to all secret processes used by the grantors, during the life of Charles S. Higgins. The paper provided that as long as-Higgins was allowed a salary of $15,000 a year, he would instruct persons acting for the company in the firm methods of manufacture. The paper further provided that so long as Higgins was employed at this salary, he would not make or sell soap in the city of Brooklyn except for the plaintiff, company. Higgins ceased to be employed in 1891, and he, with his wife and son, and two other persons, procured the incorporation of the defendant in the state of New Jersey. The defendant opened a place of sale in Brooklyn. The old private firm had 'manufactured soap sold under different names, but the principal article was known as “ Chas. S. Higgins’ Herman Laundry Soap.” The defendant marks its soap on the label “ Higgins Soap Co., Original Laundry Soap, Chas. S. Higgins, Prest.; ” and on one side of the bar of soap, inclosed within the labels, “ Higgins Soap Co., Chas. S. Higgins, Prest..” and on the other side of the bar, “ Original Laundry.”' The soap of the private; firm and of the plaintiff was well known in the market as “HigginsSoap,” and the plaintiff more or less known as the “Higgins Soap Company.” The basis of this action is such as is involved in trade-mark cases. The use of the name of Higgins by the family of Charles S. Higgins, in connection with himself and others, of itself gives no right of action. Meneely v. Meneely, 62 N. Y., 427.

The evidence is to the right to relief for the use of a trade-mark and to prevent fraud and imposition. The name of Higgins was in the corporate description of both companies, and both companies do business in Brooklyn city. Bach company manufactures soap and each calls its product Higgins soap. There was no covenant by Charles S. Higgins that he would not carry on a soap business in Brooklyn except upon the condition of his employment by the plaintiff, and his right to so carry on the soap making business was necessarily implied in the bill of sale. Charles S. Higgins has very little interest in the defendant corporation, one-twelfth only. The labels on the manufactured articles are entirely different. One is bright yellow and the other is blue. The distinctive word “ German,” which the plaintiff has the right to use as indicating its product, is absent from the defendant’s label. The plaintiff’s label has a German, recommendation for a soap which will not destroy the fabric washed. The defendant’s has a recommendation in four different languages that the defendant’s soap is made of the very best materials and without adulteration, and will not injure the fabric. The place of manufacture of defendant’s soap is printed plainly on the labels used. The plaintiff’s label contains no place of manufacture. Apart from the use of the word Higgins, in the corporate name and' stamped on the manufactured product, there would be no cause of complaint either that the business of the parties was liable to confusion among purchasers or that it was carried on to deceive the public. No case was made out for an injunction under this proof. Munro v. Tousey, 129 N. Y., 38 ; 41 St. Rep., 127.

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.  