
    (71 Hun, 101.)
    CHARLES S. HIGGINS CO. v. HIGGINS SOAP CO.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Soap Manufactories—Trade-Marks—Infringement—Injunction.
    Plaintiff, the Charles S. Higgins Company, was incorporated, and to it was sold by a firm, oí which Charles S. Higgins was a member, a soap manufacturing business, with the good will thereof, all trade-marks, names, and devices used in distinguishing the manufactured product, ana the right to all secret processes used; and it was further provided that, so long as Charles S. Higgins was retained at a certain salary by the corporation, he would not make or sell soap in a certain city except for the corporation. After going out of its employ, he, with his wife, son, and two other persons, organized defendant, the Higgins Soap Company which manufactured soaps with marks and wrappers thereon resembling those of plaintiff only in the use of the word “Higgins.” Helé, that defendant would not be enjoined from conducting its business, it having the right to use the name Higgins, and there being nothing else to show that there would be confusion among purchasers, or that defendant’s business was carried on to deceive the public.
    Appeal from special term, Kings county.
    'Action by the Charles S. Higgins Company against the Higgins Soap Company to enjoin defendant from manufacturing or selling soap under the name of the Higgins Soap Company. Judgment for defendant. Plaintiff appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN, J.
    H. Aplington, for appellant.
    Johnson & Lamb, for respondent.
   DYKMAN, J.

William B. Higgins started a business of manufacturing soap in 1846. Charles S. Higgins, his son, became subsequently a partner with his father in the business. After the death of the elder Higgins, the business was acquired by Charles S. Higgins and John J. Morgan. They continued such owners until December, 1891, when the plaintiff was organized as a domestic corporation for the manufacturing and selling of soap. The proprietors, Higgins & Morgan, then assigned the property used in the manufacture of soap by them, real and personal, with the good will of the business, with the trade-marks, and all names and devices employed in distinguishing the manufactured product, and the right to all secret processes used by the grantors during the life of Charles S. Higgins. Tjie paper provided that, as long as Higgins was allowed a salary of $15,000 a year, he would instruct persons acting for the company in the firm methods of manufacture. The paper further provided that so long as Higgins was employed at this salary he would not make or sell soap in the city of Brooklyn except for the plaintiff company. Higgins ceased to be employed in 1891, and he, with his wife and son and two other persons, procured the incorporation of the defendant in the state of New Jersey. The defendant opened a place of sale in Brooklyn. The old private firm had manufactured soap sold under different names, but the principal article was known as “Chas. S. Higgins’ German Laundry Soap.” The defendant marks his soap on the label “Higgins’ Soap Co. Original Laundry' Soap. Chas. S. Higgins, Prest.and on one side of the bar of soap, inclosed within the labels, “Higgins’ Soap Company. Chas. S. Higgins, Prest.,” and on the other side of the bar, “Original Laundry.” The soap of the private firm and of the plaintiff was well known in the market as “Higgins’ Soap,” and the plaintiff more or less known as the “Higgins’ Soap Company.”

The basis of this action is such as is involved in trade-mark cases. The use of the name of Higgins by the family of Charles S. Higgins in connection with himself and others, of itself, gives no right of action. Meneely v. Meneely, 62 N. Y. 427. The evidence is to the right to relief for the úse of a trade-mark, and to prevent fraud and imposition. The name of Higgins was in the corporate description of both companies, and both companies do business in Brooklyn city. Each company manufactures soap, and each calls its product “Higgins’ Soap.” There was no covenant by Charles S. Higgins that he would not carry on a coop business in Brooklyn, except upon the condition of his employment by the plaintiff, and his right to so carry on the soap-making business' was necessarily implied in the bill of sale. Charles S. Higgins has very little interest in the defendant corporation,—one-twelfth only. The labels on the manufactured articles are entirely different. One is bright yellow, and the other is blue. The distinctive word “German,” which the plaintiff has the right to use as indicating its product, is absent from the defendant’s label. The plaintiff’s label has a German recommendation for a soap which will not destroy the fabric washed. The defendant’s has a recommendation, in four different languages, that the defendant’s soap is made of the very best materials, and without adulteration, and will not injure the fabric. The place of manufacture of defendant’s soap is printed plainly on the labels used. The plaintiff’s label contains no place of manufacture. Apart from the use of the word “Higgins” in the corporate name, and stamped on the manufactured product, there would be no cause of complaint either that the business of the parties was liable to confusion among purchasers, or that it was carried on to deceive the public. Ho case was made out for an injunction under this proof. Munro v. Tousey, 129 N. Y. 38, 29 N. E. Rep. 9.

The judgment should be affirmed, with cost.  