
    Butler-Butler, Inc., Plaintiff, v. Nicholas E. Marcoglou, Appellant. In the Matter of the Application of American Tobacco Company, Respondent, to Punish Nicholas E. Marcoglou for Contempt of Court.
    First Department,
    December 30, 1915.
    Injunction—business competition — similarity of cigarette package — when no violation of injunction.
    Where an injunction forbids a defendant manufacturing cigarettes from using packages red in color with a white border and bearing any of the designs or special wording used by the plaintiff on its cigarette packages, there is no violation of the injunction by the mere use of a red package with a white border, if in fact none of the designs or words used by the plaintiff appears upon defendant’s package and there is no other resemblance between the two.
    Appeal by the defendant, Nicholas E. Marcoglou, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of February, 1915, adjudging him in contempt of court.
    
      William Harman Black, for the appellant.
    
      Theodore M. Crisp, for the respondent American Tobacco Company.
   Smith, J.:

Defendant has been charged with contempt in disobeying an injunction contained in a judgment in which the restraining clause reads as follows:

“ It is hereby adjudged and decreed, that the defendant, his assigns, attorneys, agents and employees and each of them, be and they are hereby restrained from manufacturing, issuing or using any cigarette box, package, or container, red in color, with a white border around the edges thereof, and containing any design, coat-of-arms, monogram or word or words (especially the word ‘ Kemall ’), resembling the package, box or container issued and used by the plaintiff, in the sale of its cigarettes known and described as ‘Pall Mall Famous Cigarettes,’ or in any way resembling the designs, monograms, coats-of-arms or words used by the plaintiff on its said cigarette boxes, as more particularly shown in Exhibit ‘A’ filed with the complaint herein.”

It will be noticed that the prohibition is against the use of a cigarette package red in color, with a white border around the edges thereof and also containing any design, coat-of-arms, monogram or word or words similar to those appearing upon the boxes in which are sold the “ Pall Mall ” cigarette. While the color of the box manufactured by the defendant and the white border are similar in appearance to those in which are sold the “Pall Mall ” cigarette, it is clear that the boxes do not contain either design, coat-of-arms, monogram or words similar to those used upon the boxes in which the “Pall Mall” cigarettes are sold. We are of opinion that the defendant’s package complained of in no way so resembles the plaintiff’s that in using the same the defendant is guilty of a violation of the injunction contained in the judgment above quoted.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  