
    Dr. Jaegers Sanitary Woolen System Co., Resp’t, v. George Le Boutillier, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 2, 1888.)
    
    1. Trade-mark—Right of owner.
    The only right that the owner of a trade-mark can enforce is, that no other person shall- in any manner by using the same or similar devices or marks, hold out to the public that he is selling the identical article manufactured, produced or sold by the other.
    
      2. Same—Who entitled to a proprietary right in.
    In order to entitle a person to claim a proprietary right in any particular device or mark attached to goods, the article to which these marks or devices have been attached must have beenmanufactured and produced by the person applying such marks or devices and thus a reputation estabtablished in the market for goods thus manufactured in connection with, these particular marks.
    
      3. Same—Owner of cannot prevent others manufacturing and selling SAME ARTICLE.
    A person may have a trade-mark in the proprietary right to which the law affords him protection, but such trade-mark gives the owner thereof no right of property so as to prevent others from manufacturing, producing or selling the same article.
    Appeal from order granting preliminary injunction restraining the defendant from selling and advertising garments stamped with the words “normal” and “System Professor Jaeger,” the plaintiff claiming the -words- “ normal ” and “ Jaeger ” as its trade-mark.
    
      Louis C. Raegener, for deft and app’lt; Everett P. Wheeler, for pl’ff and resp’t.
   Vak Brunt, P. J.

In the disposition of this appeal it is-not necessary for us to determine as to whether under any circumstances Prof. Jaeger could have obtained a trademark in the words “normal” and “Jaeger.”

Upon considering the points made by the respondent, upon this appeal it does not appear that the distinction between the protection of a patent and that which is afforded, to a trade mark has been clearly observed.

A patent protects the first producer or inventor of an. article against the manufacture, production and sale of any such article without his consent. Although a person may have a trade mark in the proprietary right to which the law affords him protection, such trade mark gives the owner thereof no right of property so as to prevent others from manufacturing, producing, or selling tne same article.,

The only right that the owner of the trade mark can enforce is that no other person shall in any manner by using the same or similar devices, or marks hold out to the public that he is selling the identical article manufactured, produced or sold by the other.

It necessarily follows, therefore, that in order to entitle a person to claim a proprietary right in any particular devices or marks attached to goods, the article to which these marks or devices have been attached must have been manufactured and produced by the person applying such marks and thus a reputation established in the market for goods or devices, thus manufactured in connection with these particular marks. The marks or devices thus used become a trade mark which becomes the property of the person who has originated it and created for it a reputation in connection with his manufactures.

In the case at bar the plaintiffs claim their right to the use of this so called trade mark because of a concession made by Prof. Jaeger in May, 1886. The difficulty, however, which the plaintiffs necessarily encounter is the fact that there is nothing to show that Prof. Jaeger had ever acquired a proprietary right in the words sought to be enjoined as trade marks. It does not appear that he had ever manufactured any of these goods; neither does it appear that he has been the vendor of such goods, having attached these words to these productions. But it seems to be assumed that because he is the inventor of the system, he has therefore the right to make concessions of the use of the words which he has employed to designate Ms particular system. Such a condition of affairs in no way conferred upon Prof. Jaeger any proprietary right, as he has not been engaged in trade and has therefore been unable to acquire any proprietary right in a trade mark.

The case of a patentee is entirely different. He acquires rights by the issuance of a patent which, if valid, entitles Mm to absolute protection.

In the case of a trade mark, it is a mark or device attached by the manufacturer and seller of goods to the merchandiseproduced by him, in order to distinguish it from a like class of merchandise produced by others, and the right to the exclusive use of such mark accrues, not because he was the originator of the same, but because he has applied it to goods of his manufacture, and they have acquired a reputation in connection with such mark. As has been heretofore stated, Prof. Jaeger, from whom the plaintiff derives title, does not seem to have acquired any such proprietary right, even though he may have originated the mark, which justifies the granting of concessions wMch can be protected by the courts. ■

The order must be reversed, with ten dollars costs and disbursements, and the injunction heretofore granted vacated.

Daniels and Brady, JJ., concur.  