
    Priestley et al. v. Adams et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 16, 1891.)
    Infringement of Trade-Mark—Injunction.
    The manufacturer of goods familiarly known to the trade by and sold under the manufacturer's name as “Priestley’s Silk-Warp Henrietta” is entitled to an injunction against any person selling goods of an inferior quality under that name, with intent to deceive the public.
    Appeal from special term, New York county.
    Action by Briggs Priestley and others against Samuel Adams and another to restrain defendants from advertising, selling, or offering for sale any goods as “Priestley’s” which are not manufactured by the plaintiff. Defendants appeal from an order granting a temporary injunction.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Kneeland, Stewart & Epstein, for appellants. Sullivan & Cromwell, ( W. J. Curtis and Alfred Jaretzki, of counsel,) for respondent.
   Daniels, J.

The plaintiffs are manufacturers at Bradford, in England, of a class of goods marked and sold, in the city of Hew York and elsewhere, as “Priestley’s Silk-Warp Henrietta.” These goods had become favorably known, and extensively dealt in, by dealers in the city of Hew York, and appear to have been of a desirable quality and style of manufacture. Proof by affidavits was made, showing that the defendants had advertised goods for sale, as Priestley’s Henriettas, at much less than their selling prices, and had sold at their store°in the city of Hew York goods represented to be those of Priestley’s manufacture which in truth were not of that make or description, They were detected in these sales by two persons commissioned to buy the Priestley goods in May and September, 1890. They were remonstrated with after each sale, but denied that such sales had been made under their authority. But from the affidavits it may be assumed to have been proved that sales were made in this manner of goods represented to be the Priestley manufacture, but which in fact were not so, by a person in their employment; and it is quite improbable that he would have made the sales with this positive assurance, if that had not been permitted and sanctioned by the defendants themselves. The business was theirs, and the profits in this manner obtained were theirs; and it is' not to be supposed that persons employed by them would have made use of this device without their approval. But while the plaintiffs identified and accompanied their goods with the name of “Priestley’s Silk-Warp Henrietta, ” as the defendant did not add that name and phrase to those sold by them, but went no further than to advertise and represent them as Priestley’s Henrietta, it has been contended in their behalf that this was not sufficient to entitle the plaintiffs to ap injunction restraining that use of this name; and a dictum to that effect has been found in the opinion upon which the case of Enoch Morgan's Sons Co. v. Troxell, 89 N. Y. 292, was decided. But it certainly is a fraud, not only on the purchasers, but also on the manufacturer, to advertise and sell goods as his which are of a different manufacture, and of an inferior and different quality; and as the deception is one which it must be impracticable either to prevent, or compensate by an action for damages, a proper ease for the interposition of a court’ of equity will be presented. And so it has already been considered, and in other instances held by the courts. In Wotherspoon v. Currie, L. R. 5 H. L. 508, it was held that a name may become the trademark of the party, and that others infringing his right to its exclusive use as a distinguishing mark of his manufacture may be restrained from continuing to do that by an injunction; and in Jay v. Ladler, 40 Ch. Div. 649, it was held that this restraint could be applied to prevent the advertisement of the goods of one person as those of the manufacture of another. The same principle will sustain the injunction, as the courts have invariably applied, to prevent the simulated violation of a trade-mark. It rests substantially upon the same facts; for there is presented the same injury to the exclusive right of the manufacturer, and the same deception and fraud upon the public, in the one case as there is in the other. And that was unqualifiedly acknowledged in the decision of the case of McLean v. Fleming, 96 U. S. 245, 254; and to the same general import is the case of Devlin v. Devlin, 69 N. Y. 212. The right of the plaintiffs to the injunction includes the entire foundation of their action. As the case is now presented, a presumptive ground for it has been disclosed. It may turn out differently at the trial, when the evidence shall be obtained unqualifiedly from the witnesses. But that possibility will not justify a disturbance of this order; and injustice, in any view, will be best prevented by continuing the injunction until the proofs of the parties can be presented in that manner. The order should accordingly be affirmed, with $10 costs and the disbursements on the appeal. All concur.  