
    Joseph Burnett et al., Respondents, v. Edward Phalon et al., Appellants.
    Trade marks. Property or proprietorship in. Wrongful appropriation of. Pacts stated in the opinion.
    E. W. Dodge, for the appellants.
    
      John Sherwood, for the respondents.
   Davies, Ch. J.

This action was brought to restrain the defendants from manufacturing, using, selling or in any manner disposing of a compound or preparation with the name Cocoine,” or Coeoaine,” printed or stamped upon the bottles, labels, wrappers, covers or packages thereof; also from using the word Coeoaine ” or Cocoine,” upon .any wrappers, labels or trade marks; and also from manufacturing, selling or offering for sale, any preparation or compounds, under the name of “ Cocoine ” or Coeoaine,” and also from imitating in any manner the trade mark “ Coeoaine;” and that defendants may account to the plaintiffs and pay over to them the profits of all the said material sold under the simulated name and trade mark above set forth.

Upon the trial by the court without a jury, the following facts were found:

1. That in or about the month of November, 1856, the plaintiffs, druggists and apothecaries, compounded from cocoa-nut oil and other ingredients, a mixture used as a hair wash, for which they devised as their trade mark a name, word, device or title, never before used, by which to mark their said compound, to wit, the name or word “ Coeoaine,” and that they published the same very extensively, with notice that they had adopted said name or title as their “ trade mark,” to secure - the public and the proprietors against imposition, and that all unauthorized use of this trade mark would be promptly prosecuted; that the plaintiffs then and thereupon introduced their said compound into the market, and expended a sum exceeding ten thousand dollars in advertising, publishing and introducing the same.
2. That in or about the month of November, 1858, the defendants, Edward Phalon and Henry L. Phalon, composing the firm of Phalon & Son, of the city of New York, hair dressers and perfumers, commenced the preparation and sale of a similar compound, in'bottles not unlike those containing the plaintiffs compound, and with labels, under the name and title of “ Oocoine,” and that they have since manufactured and sold large quantities thereof.
3. That the defendants, well knowing that the name, word or title of Cocoaine,” was and for a considerable time had been1 the trade mark of the plaintiffs, with the wrongful intention of inducing the public to believe that the compound sold by themselves under the name, word, or title of Oocoine,” was that of the plaintiffs, and with the wrongful intention of seeming to themselves the benefit of the skill, labor and expense of the plaintiffs, have so closely imitated and used the aforesaid trade mark of the plaintiffs, as to deceive the public and injure and endamage the plaintiffs; that the word, name, title or device “ Oocoine ” is a spurious and unlawful imitation by the defendants, of the word, name, title or device “ Oocoaine,” the aforesaid trade mark of the plaintiffs.
4. That there was no. evidence to support the defendants’ allegations that the plaintiffs have in any manner committed any fraud or imposed upon the public.
5. That the plaintiffs are entitled to the relief demanded in the complaint, that the defendants be perpetually enjoined and restrained from the further imitation and use of the aforesaid trade mark of the plaintiffs, and that the damages which the plaintiffs had sustained they were entitled to recover.

Such damages having been ascertained, judgment was rendered accordingly for the plaintiffs, and on appeal to the General Term the same was affirmed.

Hpon the facts found by the court the right of the plaintiffs to the relief granted, is clear and indisputable. The plaintiffs have adopted, appropriated and used a certain trade mark. This has become their property, and for its protection from invasion or use by others, the plaintiffs are entitled to invoke the aid of courts of justice. We have the ascertained fact before us, that the defendants are using a spurious and unlawful imitation of the plaintiffs’ trade mark. This they cannot be permitted to do. The cases in the courts of this State have firmly established this doctrine. (Coats v. Holbrook, 2 Sand. Ch. 586, and cases there cited; Taylor v. Carpenter, id. 603; same case in court of errors, id. 611; Patridge v. Menck, id. 622; Williams v. Johnson, 2 Bosw. 6; Stokes v. Landgraff, 17 Barb. 608; Wolfe v. Goulard, 18 How. Pr. 64; Clark v. Clark, 25 Barb. 76; Brooklyn White Lead Co. v. Masury, id. 416.)

The rule is nowhere laid down with more clearness and accuracy than by Mr. Justice Duer in his elaborate and able topinion in the case of the Amoskeag Manufacturing Co. v. Spear (2 Sand. S. C. 599). He there says: “Every manufacturer and every merchant for whom goods aré manufactured, has an unquestionable right to distinguish the goods he manufactures or sells by a particular mark or device, in order that they may be known as his in the market for which he intend them and that he may thus secure the profits, that their superior repute as his may be the means of gaining. His trade mark is an assurance to the public of the quality' of his goods, and a pledge of his own integrity in their manufacture and sale. To protect him, therefore, in the exclusive use of the mark that he appropriates, is not only the evident duty of a court, as an act of justice, but the ■interest of the public as well as of individuals, require, that the necessary protection shall be given.”

Hpon the facts found by the court on the trial of this action, and such finding is conclusive upon this tribunal, the judgment of the Superior Oourt of Hew York was correct, and sliould be affirmed, with costs.

All concur.

Judgment affirmed.  