
    William F. Pettes and Asa S. Randall, Doing Business under the Name of “American Watchman’s Clock Company,” Respondents, v. American Watchman’s Clock Company, a Corporation, Appellant.
    
      Copartnership neme, assumed by a corporation with intent to acquire part of the business and prevent the incorporation of the copartnership — equity will restrain the corporation from, so doing.
    
    In the summer of 1901 a copartnership, engaged in the borough of Manhattan in the sale and installation of electric clocks designed to register the presence and movements of watchmen, filed a certificate, pursuant to section 363b of the Penal Code, setting forth its intention to do business under the name of the “American Watchman’s Clock Company,” and has since carried on business under that name.
    
      In May, 1902, the copartners executed the necessary papers for the formation in the State of New York of a corporation under the name which had been assumed by them. Before this purpose could be effected, other parties formed a corporation in the State of New York under the name which the copartners had adopted. This corporation was organized for' the sale and installation of watchmen’s clocks, and the selection of the corporate name was made with a view of obtaining a portion of the copartnership business and of appropriating the copartnership name and of preventing the copartnership from incorporating in the State of New York under that name.
    
      Held, that a court of equity had power, at the suit of the copartnership, to enjoin the corporation from doing business under such corporate name.
    Appeal "by the defendant, the American "Watchman’s Clock Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 5th day of February, 1903, upon the decision of the court, rendered after a trial at the Kings County, Special Term, enjoining the defendant from transacting business under its corporate name..
    
      Richard Reid Rogers, fob the appellant.
    
      Wilmot L. Morehouse, for the respondents.
   Hirschberg, J..:

The plaintiffs are copartners engaged in business in the borough of Manhattan, a part of their business being the sale and installation of electric time detectors or clocks designed to .register the presence and movements of watchmen in manufactories, etc. In the summer of 1901 they filed in the New York county clerk’s office a certificate pursuant to section 363b of the Penal Code, setting forth their intention to do business under the name of the American Watchman’s Clock Company.” Since that time they have carried on under the name so assumed by them the business of selling and installing the watchman’s clocks referred to, and in the month of May, 1902, they executed the necessary papers for the purpose of incorporating a company or incorporation under that designation in this State to carry on that business. In that month, however, the defendant was incorporated under the same name in this State, with a capital stock of $500, for the express purpose of engaging in the manufacture, sale and installation of watchman’s clocks, thereby. anticipating and forestalling the plaintiffs’ proposed incorporation, and the use of such corporate uame for that purpose by the defendant has been enjoined by the judgment appealed from.

The evidence indicates quite clearly that, the incorporators of the defendant company knew, at the time of the incorporation, of the fact that the plaintiffs were conducting the branch of their business in question under the same designation as that selected by the incorporators, and also that the selection of the corporate name by the latter was made with a view of obtaining some part at least of the plaintiffs’ business, and of selling and installing the same articles of manufacture in the borough of Manhattan as those dealt in by the plaintiffs. The 1 carried trial court has found as facts upon sufcient evidence that the further purpose of the organizers of the defendant company was to appropriate to their own use the partnership name which the plaintiffs had chosen for this branch of their business and to prevent the plaintiffs from incorporating in this State under that name.

While the question is not free from doubt,. I am inclined to the view that the facts recited serve to remove this case from the operation of the class of cases cited by the learned counsel for the appellant, and to present a situation in which a court of equity may grant injunctive relief. It may be that the words “American Watch: man’s Clock Company ” do not contain the essential elements of a trade mark which will be protected as the exclusive property of the person who first makes use of them. (See Koehler v. Sanders, 122 N. Y. 65; Clooke & Clobb Co. v. Miller, 169 id. 475; Barrett Chemical Co. v. Stern, 176 id. 27; Elgin National Watch Co. v. Illinois Watch Co., 179 U. S. 665.) The words “ watchman’s clocks ” are in common use, and even when joined with the word “ American” may not perhaps be lawfully monopolized as a trademark under the doctrine of these cases. But a different principle applies where a partnership name is infringed, and especially where, as in this instance, the infringement is for the purpose of selling identical property or articles in the same locality and under circumstances which are certainly calculated, if not actually designed, to deceive the public.

The precise principle was applied in Higgins Co. v. Higgins Soap Co. (144 N. Y. 462), and it was held in that case that an exclusive right may be acquired in the name in which a business may be carried on, and that an injunction lies to restrain the simulation and use by one corporation of the name of a prior corporation which tends to create confusion and to enable the later corporation to obtain the business of the prior one. The court said (p. 469): The principle upon which courts proceed in restraining the simulation of names in the nature of trade marks and have come to designate the business of a particular person or company is stated in Lee v. Haley (L. R. [5 Ch. App.] 155) an action to restrain the use by the defendant of the name of The Guinea Coal Co. in his business. ‘ I quite agree (said Gifford, L. J.) that they (plaintiffs) have no property in the name (Guinea Coal Co.), but the principle upon which the cases on the subject proceed is not that there.is property in the word, but that it is a fraud on a person who has established a trade and carries it on under a given name, that some other person should assume the same name or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name.’ The cases are not infrequent in which the use of corporate names has been restrained on the principle of the trade mark cases. (Holmes, Booth & Haydens Mfg. Co. v. Holmes, Booth & Atwood Mfg. Co., 37 Conn. 278; Massam v. Thorlefs Cattle Food Co., L. R. [14 Ch. Div.] 748 ; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94; Newby v. Oregon Central Rway. Co., 1 Deady, 609 ; Rogers Mfg. Co. v. Rogers & Spurr Mfg. Co., 11 Fed. Rep. 495; The Le Page Co. v. Russia Cement Co., 51 id. 942.) ”

The judgment should be affirmed.

Bartlett, W oodward and Hooker, JJ., concurred.

Judgment affirmed, with costs.  