
    Taendsticksfabriks Aktiebolaget Vulcan, Resp’t, v. Elijah Myers et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed October 3, 1893.)
    
    1. Trademark.
    Plaintiff was a Swedish corporation engaged in manufacturing matches, and .used since 1883 a box having “The Vulcan” stamped in red colors over a globe, and showing three medals and the words “Damp Proof,” “Trade Mark” and “ Paraffin Matches.” Defendants imported matches from Holland put up in boxes stamped in red ink “The Vulture,” and a picture of a vulture with outspread wings, and the other. words as on plai'itiff’s box. Held, that 'this use of defendants’ label was an imitation of plaintiff’s trade mark, and so closely resembled it that when used upon, boxes containing matches it had a tendency to create confusion in the market and mislead and deceive the public.
    
      % Same.
    It is not necessary to show that any person had actually been deceived by the imitation of the plaintiff’s trade mark; it is sufficient if injury to plaintiff's business is threatened or imminent to authorize the court to intervene to prevent its occurrence. The owner is not required to wait until the wrongful use of his trade mark has continued for such a length of time as 'to cause some substantial pecuniary loss.
    3. Same—Intent.
    The question of wrongful or fraudulent intent on the part of one who-infringes upon a trade mark does not arise where nothing but preventive; relief is granted.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff, entered after trial at special term.
    
      Michael H. Cardozo, for app’lts; H. Aplington, for resp’t.
    
      
       Affirming 46 St Rep., 962.
    
   Maynard, J.

The plaintiff is a Swedish corporation engaged in the manufacture of matches, and is entitled to the exclusive use-of -a trade mark consisting of a label affixed to a small rectangular box containing the matches, and having printed or stamped upon it in red colors the words, “The Vulcan,” over a globe, upon each side of which are the representations of three medals awarded to-the plaintiff at the Swedish exhibition at Gothenburg, in 1871, at the Russian exhibition at Moscow, in 1872, and at 'the Austrian exhibition at Vienna, in 1873, the obverse and reverse surfaces of the medals being both exhibited. There is also printed underneath the name, and over the globe, the words “ Damp Proof,” and beneath the globe the words “Trade Mark,” and at the bottom of the label the words “ Paraffin Matches.” This trade mark was adopted by the plaintiff in 1883, and has been used by it. continuously ever since, and it derives large profits from the sale-of its matches under it. The defendants are dealers in matches,, and imported from Holland, in 1889, matches put up in boxes identical in size and general appearance with those used by the plaintiff, and bearing upon them a label also printed or stamped in red ink, and with letters of the same style as those upon the plaintiff’s-; boxes, and upon which appear the words “ The Vulture,” and the picture of a vulture with outspread wings, and a fac simile of the-medals awarded to the plaintiff, and the words “Damp Proof,” “Trade Mark,” and “Paraffin Matches,” arranged in the same-way as upon plaintiff’s boxes.

The trial court has found that this use of the defendants’ label is an imitation of the plaintiff’s trade mark and so closely resembling it that when used upon boxes containing matches it has-a tendency to create confusion in the market and mislead and deceive the public.

From 'an examination of the specimens submitted to us, we think that this finding is fully supported by the proofs. The similarity between -the names employed and -the devices used ; the identity of the medals represented and the correspondence of -size, color and general appearance, when combined upon the wrapper of a. box, are so close and striking that an intending purchaser of the-plaintiff’s goods would be likely to be imposed upon if the matches-sold by defendant in these packages should be offered. While-competition is 'essential to the life of commerce, and is the consumer’s main defense against extortion, it should be fair and honost, and the manufacturer who produces an article of recognized excellence in the market, and stamps it with the insignia of his industry, integrity and skill, makes his trade mark a part of his capital in business, and thus acquires a property right in it, which a court of equity will protect against all forms of commercial piracy. It is true that the principal points of resemblance between the wrappers occur on the top of the box, and that the words and characters on the bottom and one of the sides are widely dissimilar, both in general appearance and in the details of their arrangement; but it is the top which is usually exposed to the eye of the buyer, and from which the impression would be produced as to the brand of the article offered for sale. The resemblance •of the wrappers in this respect is so marked as to leave no room for doubt what the trade effect would be.

Ho evidence was given or offered to show that any person had actually" been deceived by the imitation of the plaintiff’s trade mark, and we think that none was necessary for the maintenance of the action. It is the liability to deception which the remedy may be invoked to prevent. It is sufficient if injury to the plaintiff’s business is threatened or imminent to authorize the court to intervene to prevent its occurrence. The owner is not required to wait until the wrongful use of his trade mark has been continued for such a length of time as to cause some substantial pecuniary loss. Manufacturing Co. v. Trainer, 101 U. S., 51.

The trial court has not found, and the proof does not indicate, any intention on the part of the defendants to infringe upon the plaintiff's trade mark. They are importers of the goods, and it is not shown that they have any interest in or control over their manufacture. On the contrary, their conduct has been such since the commencement of the action as to acquit them of the charge of any wrongful or fraudulent intent. But this question •does not arise where nothing hut preventive relief is granted. It might be material if damages were sought or claimed. As was said by Judge Allen, in Colman v. Crump, 70 N. Y., 573, it is not necessary, to sustain an action of this kind, “ either to establish a guilty knowledge or fraudulent intent on the part of the wrong doer. It is sufficient that the proprietary right of the party and its actual infringement is shown.”

The cases are numerous where this principle has been asserted and applied.

We discover no error in the record, and the judgment and order must be affirmed, with costs.

All concur.  