
    D. Ransom Son & Co., Resp’t, v. Alvin M. Ball, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Tbademabk — Fbaud.
    Plaintiff’s label upon the inside wrapper described the medicine as prepared by Dr. J. E. Miller, from whom the right to prepare and sell the same was purchased; the outside wrapper stated it was prepared by plaintiff. The medicine bore the name of “Miller’s Magnetic Balm,” but it was not pretended that it possessed any magnetic properties in a scientific sense. In an action for infringement of trademark, Held, that these facts did not show any intentional or actual fraud on the public by the plaintiff which would deprive it of the right to the protection of the law in the use of its property.
    Appeal from a judgment entered on the findings and decision of the court at special term.
    
      F. S. Perkins, for app’lt; N. Morey, for resp’t.
   Dwight, J.

The action was to restrain the defendant from infringing the plaintiff’s trade mark, employed upon the wrappers of a proprietary medicine. The fraud of the defendant in pirating the name of the medicine, the language in which it was described,, the directions for its use and the engraved design of the wrappers in which it was sold, was bold and barefaced. There is no attempt to deny or excuse it. The only defense alleged is that the plaintiff corporation had no right which the defendant' was bound to respect or which a court of equity will interfere to protect, because its trademark was itself a fraud upon the public. This charge is founded upon two specifications, viz.: 1st, that the Ílaintiff’s label falsely described the medicine as “ prepared by )r. J. R Miller,” and 2d, that the use of the word “ magnetic ” in the name of the medicine was without foundation in fact.

We do not think that the facts presented under either or both of these specifications support the charge of fraud against the plaintiff. The medicine was originally, prepared and sold by one J. R. Miller, who had either assumed, or acquired from his business, the title of “ doctor.” He had sold the formula of the jiréparation, the good will of the business, and the tradmark or the name under which the medicine had been sold, to the plaintiff.

The outer wrappers of the plaintiff’s bottle bore the words, plainly printed, “ Prepared and sold by D. Ransom, Son & Co., Prop’rs, Buffalo, N. Y.” It was on an inner wrapper only, directly beneath the directions for the use of the medicine, that the words were printed, “Prepared by Dr. J. R. Miller.” We think it did no violence to the facts to say that these words intended that the medicine was originally prepared by Miller, or even, as the judge at special term was inclined to think, that the directions were prepared by Miller. An intention to defraud by these means can hardly be imputed to the plaintiff when we see that it took pains to inform purchasers of the actual facts by the inscription on the outer label, while the inscription complained of was concealed until after the medicine was purchased and the outer wrapper removed. As for the use of the prefix “Dr.” to Miller’s name, it must be said that the title is too common and too indefinite in its meaning to be likely to deceive anybody. It is as freely used as that of “ Professor,” and means as little.

The medicine bore the name of “ Miller’s Universal Magnetic Balm,” It is not pretended that the liquid possessed any of the properties of magnetism in the scientific sense of the word, nor do we think it clear that the use of the word “ magnetic,” in its title, was intended to deceive the public in that respect. The word, so far as any meaning was attached to it, was probably used rather in a figurative than in a literal or scientific sense, and there was but little danger of its being misunderstood. There is no evidence in the case which, as we think, would have justified the finding that, in continuing the use of the name under which the plaintiff bought the right to manufacture and sell Miller’s preparation, it was guilty of any intentional or actual fraud upon the public which deprives it of the right to the protection of the law in the use of its property.

The judgment should be affirmed.

Barker, P. J., and Childs, J., concur.  