
    The People of the State of New York, Respondent, v. Charles Hoffheimer, Appellant.
    First Department,
    December 30, 1905.
    Criminal law—trademarks — erroneous conviction under Penal Code, section 364.
    Section 364, subdivision 6, oí the Penal Code, which makes it a misdemeanor for one knowingly to sell, etc.,' goods “which are represented in any manner * * * to be the manufacture or product of any person * * *■ other than himself, unless such goods are contained in the original packages and under the labels, marks or names placed thereon by the manufacturer who is entitled to use such marks, names,” etc., applies only to goods sold in the package "in which they were put by the manufacturer and having thereon labels, marks or names constituting a trade mark. ,
    Hence, it is error to convict a salesman under said, section for representing a lounge which, he sold to be covered with pantasote when in fact it was covered with other imitation leather, and it is not shown that he knew the goods he sold were not pantasote.
    . Appeal by the. defendant, Charles Hoffheimer, ¡from a judgment of the Court-of Special Sessions of the city of Hew York, rendered on the 29th day of March, 1905, convicting the defendant of a . violation of subdivision 6 of section 364 of the Penal Code, ■
    
      William O. Campbell, for the appellant,
    
      Robert S. Johnstone, for the respondent.
   Laughlin, J.:

The defendant was a .salesman in .the employ of Spear & Co., who conducted a. furniture store at Ho. 253 Sixth avenue, in the city of Hew York. On the 12th day of December, 1904, he sold a lounge the covering of which he represented to be pantasote. Pan- ■ tasóte is a leather substitute manufactured by the Pantasote Leather Company; a corporation organized in 1890. The word pantasote ”■ is registered as a trademark and is marked on the selvage of all goods manufactured by the company. It appears that, no other company manufactures goods under that name, although there are many imitations of its goods in use. It. was not shown that the Pantasote • Leather Company manufactured the. couch or lounge or manufactures anything other than .pantasote; It is manifest that the panta-sote could not remain in the original paclmge in which' it was put up by the manufacturer and at the same time be used in the manu-. facture of couches. This was self evident and no' one- could be deceived concerning it. It does not definitely appear. how closely the material with which the cou'ch was covered resembled pantasote, but the difference was described by the witnesses as .consisting of a difference in the grain and odor. It was not shown that the defendant knew that pantasote was manufactured by the Pantasote Leather Company or under á trade mark; nor.was it-shown that he knew that the-couch was not covered with genuine pantasote or how to determine-the material , known as pantasote. It does not appear whether or not the goods he represented as pantasote had any or what trade mark stamped on the selvage. He testified that he did not know that the couch was not covered with pantasote and that he knew that it was pantasote. He evidently meant by this that it was known to him as pantasote, for he testifies that he had been selling pantasote for ten or twelve years. It does appear from his evidence that he understood that the couch was covered with imitation leather which was known to him and the other salesmen as pantasote, but whéther or not it was the real pantasote or pantasote was its proper name he could not tell. Section 364 of the .Penal Code entitled “ Offenses against trade-marks ” provides as follows: “ A person * * * 6. Who knowingly sells, offers or exposes for sale, any goods which are represented in any manner, by word or deed, to be the manufacture or product of any person, firm - or corporation, other than himself, unless such goods are contained in the original packages and under the labels, marks or names placed thereon by the manufacturer who, is entitled to use such marks, names, brands or trade-marks, * * * shall be guilty of a misdemeanor.”

The information charged the defendant with violating the provisions of the statute quoted and he has been found guilty thereof on the evidence the substance of which has been stated. If the statute had any application to such goods after being used in the manufacture of a couch or other article, it is quite clear,, we think, that it was incumbent on the prosecution to show that the defendant knew that the goods he represented to be pantasote were not pantasote. Surely every salesman is not chargeable with knowledge of every patent or trade mark, nor can it be that thé Legislature intended that a salesman who is informed that goods are known by a certain name and innocently sells them as such is guilty of a crime if it appears that the manufacturer of the goods thus sold was not authorized to use the name in connection therewith.

But we are of opinion that the statute has no application to the state of facts shown by the prosecution. The purpose of the statute evidently, was to protect the owners of trade marks by making it sn crime to sell or offer or expose for sale goods covered by a trade mark owned by another unless the goods when sold ór offered or exposed for sale were contained in thejpadkage in which they were put up by the manufacturer and had thereon the labels, marks or names constituting the traite mark by which the manufacturer desired the goods to be known and introduced. . It needs no argument to show that if this be 'the true "construction of the statute,, no violation thereof has been shown.

It follows, therefore, that the conviction was .erroneous and the judgment^should be reversed and the defendant discharged.

O’Brien, P. J., Patterson, McLaughlin arid Houghton, JJ., concurred.

Judgment -reversed and defendant discharged.  