
    The Bolen & Byrne Manufacturing Company, Plaintiff, v. Rudolph Jonasch et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1899.)
    Trade-mark — Injunction against labels likely to deceive the consumer.
    Where former employees of a firm, long engaged in manufacturing ginger ale, etc., desert it and enter into the same business, and therein adopt labels which, in size, form, type, color and ornamentation, so far resemble those used by the firm as to be calculated to deceive the consumer, such use will be enjoined, although the defendants deny any intention to imitate the plaintiff’s labels and present affidavits of dealers to the effect that purchasers, using ordinary caution, will not be misled by the labels adopted by the defendants.
    Motion for an injunction pendente lite. 6
    F. Y. Dobbin, for motion.
    E. Zabriskie, opposed.
   Gildersleeve, J.

This is a suit in equity to restrain the defendants from using a simulation of the plaintiff’s labels. The complaint charges the defendants with an unlawful appropriation of the plaintiff’s labels and trade-marks and with unfair competition in trade. The plaintiff and its predecessors (to whose rights the plaintiff has succeeded) have carried on the business of making and selling ginger ale, sarsaparilla and lemon soda in the city of New York for upwards of thirty years, and have, during part of that time, used the labels which the defendants are charged with imitating. In 1873, 1876 and 1878, the Vienna, Paris and Centennial Expositions, respectively, made to the plaintiff, or to its predecessors in business, awards for the excellence of their goods. Prior to March last, the defendants were all employed by the plaintiff, or its predecessors, in various capacities, for periods ranging from thirteen to thirty years. Shortly before April last, the defendants, apparently by common consent, all left the employment of the plaintiff, and, a few weeks afterwards, united in the business of manufacturing goods of the same kind as those made by the plaintiff. In putting their goods upon the market, the defendants adopted labels for their goods which the plaintiff alleges are imitations of its labels. A general comparison of the labels used by the defendants with those of the plaintiff discloses a marked resemblance between them, and this impression is confirmed by a minute inspection of the details of size, form, type, color and ornamentation. There are the same clipped edges at the top and bottom, the same pointed ends on either side, and the same serrated border. The yellow-colored center in the label used by the defendants for lemon soda is of .exactly the same shade as that in plaintiff’s label for that article. For ginger ale and sarsaparilla the defendants have adopted, for the center of their label, green and red of a shade only slightly different from those colors in the plaintiff’s label for the same articles, but the difference in shade is not sufficient to make a contrast between the two which is at all noticeable. The words ginger ale are - printed in type precisely alike in every respect in both plaintiff’s and defendants’ label for that drink. In the case of lemon soda and sarsaparilla, the type is not the same in both labels, but very similar, the difference being so slight as not likely to arrest the attention of a casual observer. In both sets of labels the surface of the type used to designate the article in the bottle is white. The figures which represent the medals received by the plaintiff from the Vienna, Paris and Centennial expositions ornament the right and left ends of their labels, and the same figures appear upon the defendants’ labels in the same position. In this respect there is no difference whatever between the plaintiff’s and the defendants’ labels. The resemblances which I have pointed out are so manifest as to lead the mind irresistibly to the conclusion that they are the result, not of chance, but of deliberate intention. The almost simultaneous departure of the defendants from the plaintiff’s employment after their long service in the plaintiff’s business, the immediate establishment of their present business and the adoption by them of the labels in question are pregnant circumstances and significant of a preconcerted design to appropriate the plaintiff’s trade-mark. They may have been ignorant of the plaintiff’s rights, and may have intended only to adopt labels which they admired and approved. But this does not excuse them in the judgment of the law, for where the simulation of a trade-mark of another is palpable, as it is here, the law deems the act as, in itself, evidence of a fraudulent intent. T. A. Vulcan v. Myers, 139 N. Y. 364; Day v. Webster, 23 App. Div. 601. Another circumstance which points directly to a deliberate design on the part of the defendants to appropriate the plaintiff’s labels is that they embellished their labels with pictures of medals, purporting, upon their face, to have been issued, presumably, to them by the Vienna, Paris and Centennial expositions, whereas, those expositions came to an end and their functions ceased upwards of twenty years ago, and the defendants’ present business is not yet six months old. This was something more than a mere thoughtléss anachronism. The same medals are pictured in the plaintiff’s labels, and in position and form are the exact originals of the defendants’ labels. This feature of the plaintiff’s labels was plainly adopted by the defendants with the view of recommending their goods to the public as having- secured the approval of the expositions in question. It is doubtless true that no one can claim an exclusive right to the use of any particular color; and -the same is true of form, and type; but' when the question of likeness or difference is presented' in a case like this, color, form and type all enter into the consideration and determination of the question. It is argued that the likeness between these two sets of labels is not sufficient to mislead purchasers using ordinary caution, and several affidavits of dealers in the articles made by both parties to the action were read in support of that position. As remarked by a sagacious judge in a similar case: “ The defendants present the usual voluminous bundle of affidavits by persons in the trade, to the effect that, in their opinion, no one is likely to mistake defendants’ biscuit for complainant’s. * * * It makes no difference that dealers in the article are not deceived; no one expects that they will be; it is the probable experience of the consumer that the court eonsiders.” Lacombe, J., in National Biscuit Co. v. Baker, 95 Fed. Rep. 35. The defendants deny any deliberate purpose to imitate the plaintiff’s labels, but that is so commonly done, even in the plainest of trade-mark cases, as to occasion no surprise. Where the evidence points so conclusively as it does here to an intentional appropriation of the trade-mark of another, the party accused is bound to go beyond a mere formal denial and make a complete disclosure of all the circumstances attending the selection of the trade-mark which he is charged with imitating. Without imputing to the defendants any purpose to deny the plaintiff’s charges, at any and all hazards, the internal evidence of design furnished. by their labels is so strong, that to ask the court to believe them entirely innocent would unreasonably tax human credulity. Assuming that there is such a thing as chance, it is seldom found as an element in the adoption of a trade-mark, especially one which another person has found useful in his business. The choice of a label, as a means of identifying an article of commerce and promoting its sale, is one of those things into which taste, judgment and expediency all enter and combine to secure something which will attract custom. And when, as now, all the resources of invention and art are at the command of any business man who wishes something pleasing in a label for his goods, he can have no excuse for helping himself to his neighbor’s trade-mark. The courts will give to every man a fair chance in the battle of life, but, in their present temper, they steadily frown upon every attempt to take an unfair advantage of another engaged in the same struggle. Motion granted, with costs. An injunction may issue restraining the defendants from using the three labels now used by them, samples of which constitute Exhibit “ B,” attached to the complaint.

• Motion granted, with costs.  