
    Hugo E. Boessneck and Others, Appellants, v. William E. Iselin and Others, Respondents.
    
      Injunction — trade mark of “ Ycvma-Mai” not infringed by use of “ Ma-Mie.”
    
    Upon a motion for a temporary injunction, made in an action brought by the. owners of a trade mark consisting of the words “ Yama-Mai,” to restrain the-defendants from using the words “Ma-Mie” to identify their goods, the plaintiffs did not aver any similarity of labels or show that the name adopted by the-defendants was adopted with the intent of interfering with the plaintiffs' business or of inducing the public to suppose that the goods manufactured by the defendants were the goods manufactured by the plaintiffs. The plaintiffs relied solely upon the alleged similarity in the names, together with evidence that when the goods manufactured by one of the parties to the action were asked-for at retail stores, the goods manufactured by the other parties were offered, and that statements were made by the salesmen that the goods were the same and that it was a mere mistake in the pronunciation of the name.
    
      Reid, that the proof was not sufficient to justify the issuance of a temporary injunction.
    
      Appeal by the plaintiffs, Hugo E. Boessneck and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of February, 1903, denying the plaintiffs’• motion for a temporary injunction.
    
      Mark H. Ellison, for the appellants.
    
      Benno Loewy, for the respondents.
   Ingraham, J.:

Upon the verified complaint and affidavits the plaintiffs made a motion upon an order to show cause for a temporary injunction. It would appear that upon the return day of the order to show cause the defendants did not appear, but notwithstanding their default the court refused to grant tlie"'ínjün'ction,"and from the order entered thereon the plaintiffs appeal, the defendants appearing upon the appeal and insisting that 'the plaintiffs’ case did not justify the court in granting this temporary injunction.

The action is brought to enforce a trade mark adopted by the plaintiffs to designate silks manufactured by them. This trade mark consists of the words “ Yama-Mai,” and the alleged infringement is in the use of the .words “ Ma-Mie,” adopted by the defendants to' identify silks manufactured by them.

There is no similarity of label averred, the-plaintiffs relying solely upon an alleged similarity of names, with evidence that when the goods manufactured by one of the parties to the action were asked for at retail stores, the goods manufactured by the other party were offered, and statements made by the salesmen that the goods were the same, and that it was a mere mistake in the pronunciation of the name. There is no similarity in the names adopted, either in spelling or pronunciation. To justify the interposition of a court of equity, it must appear that the plaintiffs’ trade mark has been simulated, and there is nothing in these papers to show such a simulation as would entitle the plaintiffs to an injunction. There is nothing to show that the name was adopted by the defendants with the intent-of interfering with the plaintiffs’ business, or inducing the public to suppose that the goods manufactured by the defendants were the goods manufactured by the plaintiffs, and nothing, therefore, to justify a finding that there is any unfair business competition.

We do not wish to foreclose the action of the court upon the trial, as other facts may then appear which would justify a judgment in favor of the plaintiffs; but upon the facts appearing before the Special Term we think the court was justified in refusing to grant a preliminary injunction.

It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; Laughlin, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.  