
    Fred L. Lavanburg, Plaintiff, v. Isaac Pfeiffer, Defendant.
    (Supreme Court, New York Special Term,
    May, 1898.)
    Trade-marks — Hostile use of initial adjectives qualifying colors.
    On a motion for a preliminary injunction In an action, it appeared that, upon the dissolution of the partnership of the parties for the manufacture and sale of dry colors, the plaintiff bought the assets including, among other things, the trade- names “Oriole Vermilion” and “ Peerless Green.” and that the defendant, who had subsequently embarked in the same manufacture, was using the terms “ O. Vermilion” and “ P. Green.”
    Held, that even assuming the plaintiff’s right to both adjectives,"he could not prevent the defendant from using the initials instead of the name, as such a use was not calculated to deceive the public, or at least, so muQh of it as used its eyes and ears.
    Motion for a .preliminary injunction brought by plaintiff to restrain the defendant ■ from selling any dry -colors under the trade names “Oriole Vermilion” or “Peerless Green,” and from using the initials “ 0.” or “ P.” Plaintiff claimed that'he was the owner of said trade names; that defendant used'the terms “ 0. Vermilion ” and “P. Green,” and that in three or four instances his salesmen, made sales under the verbal description of “ Oriole ” and “ Peerless.” The moving affidavits are met by absolute'denials.
    Spiegelberg & Wise, for plaintiff.
    A. L. & S. F. Jacobs, for defendant.
   Cohen, J.

The plaintiff and. the defendant were formerly co-partners, engaged .in the business of manufacturing and selling dry colors. The copartnership was dissolved December 24, 1896, and the plaintiff bought the assets of the business, including the trade names and marks, and since that time the plaintiff alone, and the defendant, either alone or associated with others, have continued in. the same kind of business. Among the trade names of the old firm were those of “Oriole Vermilion.” and “ Péerless Green-,” which names the plaintiff now seeks to enjoin the defendant from using. It nowhere appears from the affidavits that on any manufactured article the defendant had' used either of those names. It does appear that he has used “O. Vermilion” and “P. Green;” but even assuming the plaintiff’s right to both adjectives, he would riot be warranted in preventing the defendant from, using the initials instead of the name, as such a use is not calculated to deceive the public, or, at least, so much of it as use their eyes and ears.

It does .appear by affidavits, which are flatly contradicted, that products made by the defendant were sold in small quantities, and in three or four instances under the verbal description of “ Oriole ” or “Peerless.” Under such circumstances, it does not seem to me that the plaintiff has made out a case for a preliminary injunction. As the defendant has expressed his willingness to accept short notice of trial for the March Term, the plaintiff can have a speedy trial, where witnesses will be examined and cross-examined, and then obtain injunctive relief if he then he found entitled thereto.

Motion denied.  