
    Maximilian Fleischman and Ano., App’lts, v. Simon Newman, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Trade-mark—When no ineringement.
    Where in an action to restrain the defendant from using the plaintiff’s label and imitation of the packages of the plaintiff’s manufacture, known as “ Compressed Yeast,” the only point of similarity between the labels-was in the shade which the ground work of the labels bore to each other, Held, that as the defendant had plainly put their name' upon their label' there was no similation or infringement of the trade-mark merely because the same shade for the back-ground of the label was used.
    Appeal from a judgment of the special term dismissing the plaintiffs’ complaint, which was filed to restrain the defendant from using the plaintiffs’ label, and imitation of the packages of the plaintiffs’ manufacture known as “Compressed Yeast,” upon which there were the words, “none genuine without our signature.” Sundry labels upon packages of the compressed yeast were put in evidence as follows:
    Plaintiffs label. Fleischmann &"Co’s. Compressed Yeast. None genuine without our facsimile signature, Fleischmann & Co. Registered Dec. 5th, 1875; registered Jan. 8th, 1871; registered Mar. 6th, 1877.
    Defendant’s label. Atlantic Yeast Company. None genuine without my signature. S. Newman Prop. Compressed Yeast. S. Newman Prop. _
    _ The following are other labels in use during the years 1876 or 1877:
    Barker Compressed Yeast Co. The best (B. C. Y.) The purest.
    
      G. Bainbridge Smith, for app’lts; Benno Loewy, for resp’t.
   Macomber, J.

The learned judge, at the trial, has found, by. his eighth, ninth and eleventh findings, that the form of packing compressed yeast used by the parties to this action, is an ordinary and usual form of packing that substance; that the same has been in use by a number"of persons and firms, other than the plaintiffs, and the defendant during the past ten years; that in consideration of the nature of the substance and of the size of the packages, the labels; used by the plaintiffs and by the defendant respectively, have substantial differences which are apparent to the casual observer.

These findings are borne out fully by the evidence in the case.

Specimens, not only of the labels used by the parties, but of the packages designed for the trade also, have been submitted on this appeal to our inspection; and it appears therefrom that there is such a great dissimilarity between the -two, that no charge of simulating or infringing the plaintiffs’ trade-mark, or of imitating the design in which its packages -are wrapped, can be maintained against the defendant. The only point of similarity between the two is in the shade of yellow which the groundwork of the labels has.

In the case of both plaintiffs and defendant, the shade is lighter than that used by other dealers for twelve years past. But each has its distinctive characteristics, none of which would be liable to mislead even a careless purchaser, as may plainly be seen by the inspection of the labels contained in the preliminary statement.

Under these circumstances, the defendant cannot be deemed to have simulated the design of the plaintiffs’ package, so as to give a right of action against him, for the simple reason that he has done no more than other dealers have done in putting up packages of this description, which must necessarily be of about a prescribed size in order to be marketable, and there is no law of this state which prohibits a manufacturer or dealer from using the words “compressed yeast.” The manufacture of this article is open to .all competitors, and they cannot be held liable in any action "to restrain them where they plainly put their name upon the label, even though they do happen to use light yellow for the background of the paper upon which the description of the commodity is given. Enoch Morgans’ Sons Co. v. Troxell, 89 N. Y., 292.

Under these circumstances, the judgment should be affirmed, with costs.

Van Brunt, Ch. J., and Brady, J., concur.  