
    The Humphreys Homœopathic Medical Co., Resp’t, v. Beatson J. Bell et al., App’lts.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed May 18, 1888.)
    
    1. Injunction—May be granted to enjoin infringement of peculiar METHODS OF PREPARING MERCHANDISE FOR MARKET.
    This action was brought to restrain the defendants from so preparing a1 d packing his medicines for the market as to resemble the plaintiff’s, and to restrain one of them from representing himself in his business advertisements as the late manager of the plaintiff's. Held, that apart from the question of the infringement of a specific trade mark, there might exist a proprietary right capable of protection by injunction, in any peculiar’ method or form of preparing articles of merchandise for the market which had been invented and first employed by the plaintiff and had not been in common use by the public.
    2. Same—When may be granted to restrain unwarranted representations REGARDING FORMER MANAGEMENT OF BUSINESS.
    
      Held, that a person having been manager of a special branch of a business, and not of the main department which required the peculiar skill necessary to the successful transaction of the business, might be restrained by injunction from advertising himself as late manager of the business.
    
      B. F. Ryan, for resp’t; Thornton Earl & Kiendl, for app’lts.
   Larremore, Ch. J.

The learned judge who tried this case at the equity term, in his opinion there rendered, has carefully considered both of the important points involved. These are:

First. The question of the similarity between the plaintiff’s and defendants’ boxes of veterinary specifics, and the alleged imitation of plaintiff’s medical preparations by the defendants; and

Second. The matter of the defendant, B. J. Bell’s describing himself, habitually in his business advertisements, as the “Late Manager of Humphreys Specific Medicine Company.”

With regard to the first of these subjects of controversy, we think that the cases cited by Judge Daly establish the general principle that, outside of the question of the infringement of a specific trade mark, there is a proprietary right which may be asserted in a court and protected from violation by an injunction, if necessary, in any original and peculiar method or form of preparing, wrapping, boxing and packing articles of merchandise, which, as matter of fact, has been invented and first employed by the plaintiff and has not been in common use by the public.

In the case of Woollam v. Ralcliff (1 Hem. & Mill, 259), cited by Judge Daly, it was held that in regard to the packing of merchandise in “a bundle similar to that of complainant’s, the wrong does not lie in the resemblance in any one particular, but in the accumulation of resemblances.” The grounds for an injunction m such a case are, as in trade mark cases, twofold, to wit: First, that of protection to the plaintiff in his exclusive right; and second, that of the protection of the public from imposition by the palming off of goods different from, or inferior to, those usually furnished by the plaintiff.

The learned judge at special term, after a careful review of the evidence and an actual inspection of the cases of medicine and the contents thereof furnished by the plaintiff and the defendants respectively, has reached the conclusion that one is a close and intentional imitation of the other; and that by reason of the similarity between the boxes externally, “ the arrangement and number of the bottles of ointment, medicator, pamphlet and labels on the bottles and inside the cover of the box,” there is danger that the public will be misled, and that persons intending to purchase the plaintiff’s preparations may be induced to purchase the defendants’ instead. We see no reason to question or disturb this finding of fact. It is one which, in the nature of things, must depend largely on an ocular examination of the original article and its alleged infringement, and the printed evidence in the case is sufficient and ample to sustain the judge’s finding.

We also concur with the learned judge’s disposition of the second question above referred to. A large part of the evidence offered by the defendants tended to show that the defendant Beatson J. Bell had actually been the manager of the plaintiff-corporation, or its predecessor of a similar name, and that, therefore, he was justified in describing himself as such manager in his subsequent business operations. But such evidence, even if taken as true, would- not establish anything further than that said defendant had been the business manager of such corporation.

The testimony shows that said defendant while in the employ of plaintiff had to do with book-keeping, general management of finances, engagement and discharge and direction of traveling salesmen and other employees, and attending to the corporation’s advertising. The business and financial department of such a corporation as the plaintiff, while of course important, is necessarily not its most essential branch; it is rather an adjunct to the main purpose of its formation. It does not appear that said defendant had anything to do with the management of the laboratory or the preparation of any of the remedies or medicine prepared by the Humphrey’s Homeopathic Medicine Company. For this reason it is not a truthful statement for Mr. Bell to describe himself as “ Late manager of the Humphreys’ Specific Medicine Company.”

As Judge Daly remarks in his opinion: “ But with that branch of the business on which alone the reputation of the company depended, the compounding of medicines and putting up of specifics, he had no concern, whatever, as Doctor Humphreys, the president of the company, and the originator of the system of specifics, had exclusive charge of it.”

A decision of Judge Dugro at the special term of the superior court (Colton v. Deane, Daily Register, Feb. 14, 1887), is in point in the present discussion. That was an action brought for an injunction against a woman, who described herself in business advertisements as, “Colton’s late assistant.” It seems that the duties actually performed-by said woman were not the assisting of the dentists in extracting teeth; but only in the administration of gas under instructions from the operator; and the plaintiff therein testified that this service could be performed by any child after an experience of a couple of weeks.

The learned judge remarked: “Colton’s business consisted in extracting teeth with the aid of gas. The extraction of teeth was the main work. This required a dentist, and for this work he had several dentists in his employ. The work of Miss Wolfsbruck was such as required very slight experience, for it seems the menial servant sometimes did it. Colton’s business establishment was well known throughout the community as a place where teeth would be painlessly extracted. And by holding herself forth to the public as ‘ Colton’s late assistant,’ Miss Wolfsbruck was impliedly claimimg that she had assisted at said establishment in the extraction of teeth, while such was not in fact her duty in said place.”

This case in the superior court was closely analagous in principle to the case at bar, and I concur with the views of the learned judge there expressed. There, as in the present case, a permanent injunction was granted against the use of the false designation or description.

The judgment appealed from should be affirmed, with costs.

Allen and Bookstaver, JJ., concur.  