
    T. B. Dunn Company, a Corporation, Appellant, v. Trix Manufacturing Company, a Corporation, Respondent.
    
      Infringement of a trade mark and unfair competition, distinguished—what facts do not establish either.
    
    A corporation engaged in manufacturing cachous used upon its packages a trade mark, the essential feature of which was the design of a ribbon extending diagonally across the package tied in a bow-knot at its center, in combination with a small seal and the word Sen-sen at the top and bottom, of the package.
    A competing corporation subsequently adopted a package bearing the design of a ribbon in the center of the package tied in a bow-knot at the upper end, in combination with a large gilt seal having the word Trix thereon.
    In an action brought by the first mentioned corporation to restrain its rival from using the form of package last described, the referee, who had before him samples of the packages used by both parties, found, as a fact, that the design upon the defendant’s packages did not so resemble the designs upon the plaintifE’s packages as to deceive, or furnish means of deceiving, those desiring- to-purchase the plaintiff’s cachous, or- to induce them to believe that the cachous-. of the defendant were those of the plaintiff, and, as a conclusion of law, he found that , the defendant-had not infringed the plaintiff’s trade mark. He also found, -as a conclusion of fact, that the defendant’s cachous were not sold, and were not intended to be sold, as those manufactured by the plaintiff, and were not put up in the defendant’s packages for such purpose, and, as a conclusion of law, he found that the defendant had not been guilty of unfair competition in trade with the plaintiff.
    
      Held, that the conclusion reached by the referee would hot he disturbed.
    The distinction between the infringement of a trade mark and unfair competition, pointed out.
    Appeal by the plaintiff, T. B. Dunn Company, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 19th day of May, 1899, upon the report of a referee.
    
      Osgood & Davis, for the appellant.
    
      William H. Driscoll, for the respondent.
   Williams, J. :

The action was brought to restrain the defendant from putting up- and selling its cachous, known as Trix, in packages, having upon them a ribbon and seal, on the grounds: First, that it was an infringement of the trade mark used upon the packages, of cachousput up and sold by plaintiff, known as Sen-Sen; second, that it was-an unfair competition in trade. The referee decided that there-' was.no infringement and no unfair competition and ordered judgment for defendant.

The facts were found by the referee in great detail and were-substantially undisputed. The errors claimed by the plaintiff related mostly to the conclusions drawn by the referee from the facts so-found in detail.

First. As to the infringement. Samples of the plaintiff’s Sen-Sen-packages and of the defendant’s Trix packages were annexed to-the complaint. The essential feature of the plaintiff’s trade mark was the design of a ribbon, extending diagonally across the -package,, tied in a bow knot at its center, in combination with a small seal,, and the word Sen-Sen. The essential feature of the defendant’s-trade mark, claimed as an infringement, was the design of a ribbon. in the center of the package, tied in a bow knot at the upper end in ■combination with a large gilt seal, and the word Trix. The words ■ Sen-Sen and Trix were arbitrary words, having no meaning prior to their use by the parties, for trade mark purposes in connection with their cachous.

These two words were entirely different; one could not be mistaken for the other. Both were made prominent upon the packages, Sen-Sen appearing at the top and bottom of plaintiff’s packages in strong black letters ; Trix appearing in the center of defendant’s packages, upon the large gilt seal, in strong black letters.

So far as these words and their positions upon the packages were concerned, they were entirely unlike, and could not be mistaken the one for the other. The gilt seals weVe'not at all similar, except that both were gilt with notched edges. The one on plaintiff’s package was smalhand near the lower right-hand corner of the package, with “ 5c.” upon its face; the one upon the defendant’s package was a large one in the center of the packagej with the word Trix upon its face.

The ribbon and bow knot were used in four colors on the plaintiff’s packages, and in the same four colors upon the defendant’s packages. Their form and position upon the packages were, however, entirely different. The whole ribbon and bow knot were exposed to view diagonally across plaintiff’s packages, the bow knot being quite a large one in the center of the packages, while a small bow-knot, different in shape from plaintiff’s, and only the ends of the ribbon were exposed to view in the center of defendant’s packages, the remainder of the ribbon being covered by the large gilt seal, with the word Trix upon its face.

The referee found, as a conclusion of fact, that the designs upon the defendant’s packages did not so resemble the designs upon the plaintiff’s packages as to deceive, or furnish the means of deceiving, those desiring to purchase plaintiff'’s cachous, or to induce them to believe that the cachous of the defendant were those of the plaimtiff, and as a conclusion of law that the defendant had not infringed plaintiff’s trade mark.

The referee had the samples of the packages before him. He examined them. He had the benefit of the suggestions of the parties and their counsel with reference to the matter; there was no proof given that any one 'was deceived, and he determined this question of fact in favor of the defendant. From an examination of the samples, and after considering the suggestions of counsel, we cannot say the referee erred in this finding of fact.

From the conclusion of fact found by the referee the conclusion of law necessarily followed. (Popham v. Cole, 66 N. Y. 69, 75; Colmam v. Crump, 70 id. 573, 578; Hier v. Abrahams, 82 id. 519, 523 ; Fischer v. Blank, 138 id. 244, 252; Brown v. Doscher, 147 id. 647, 651.)

Second. As to the unfair competition. The referee, in addition to the finding already referred to, found as conclusion of fact that the defendant’s cachous were not sold, and were not intended to be sold, as cachous manufactured by plaintiff, and were not put up in defendant’s packages for such purpose, and as conclusion of law that the defendant had not been guilty of unfair competition in trade with plaintiff.

It is said by the appellant, the plaintiff, that the referee failed to recognize the difference between infringement of a trade mark and unfair competition. It is not important here to distinguish very carefully between these two rights of action.

In a general way the infringement of a trade mark, so far as applicable to this case, may be said to be the improper use by the defendant of the emblems constituting the trade mark of the plaintiff, whether upon packages of cachous of the same general appearance or not; while unfair competition in trade may be said to be the simulation by defendant of the packages of plaintiff, putting up and selling packages of the same general appearance as those of the plaintiff. In this case the question as to unfair competition was whether the defendant was fraudulently attempting to pass off upon the public its cachous as the cachous of the plaintiff.

Fraud was the essence of the claim. The simulation might be so great as that fraud would be implied, otherwise it had to be proved by evidence aliunde. (Day v. Webster, 23 App. Div. 601, 602.)

But the court should only interfere to protect the plaintiff and the public, and for the suppression of unfair and dishonest competition, when the resemblance is such that it is calculated to deceive, and does, in fact, deceive the ordinary buyer, making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates.”

This was the test laid down in Fischer v. Blank (138 N. Y. 252),, the court adding, “ No inflexible rule can be laid down. Each case must in a measure be a law unto itself. The authorities bearing upon the general question are numerous and diverse.”

The referee here decided that the defendant did not intend that, its cachous should be sold as those put up by the plaintiff; that it. did not put up its packages as it did for such purposes; and that the defendant’s packages did not resemble those put up by the plaintiff so closely as to deceive or furnish the means of deceiving those who desired to purchase plaintiff’s cachous, or to induce the belief that they were put up by the plaintiff.

The conclusion of the referee, from an examination of the packages and from the evidence in the case, seems to have been that the defendant’s object was to brighten up its packages, to make them more attractive than their packages had theretofore been, but without any design to make it appear they were plaintiff’s packages.

In view of the prominence given on both packages to the words, by which the goods of the respective parties were known, Sen-Sen. and Trix, we are quite unable to see how any one of ordinary intelligence could possibly have mistaken the one for the other, especially when we consider the'very great extent to which both were advertised through the country.

We see no reason for disagreeing with the referee as to the conclusions he arrived at. He had a very correct view of the case and of the questions involved. We do not think this case was one for the interference of a court of equity, either upon the ground of infringement of the trade mark or unfair competition in trade.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  