
    David S. Brown et al., App’lts, v. John H. Doscher, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed Novmber 17, 1893,)
    
    ■Trade mark—Infringement.
    An action to restrain an alleged infringement of plaintiff's wrapper cannot be maintained, where the resemblance is not such that it is calculated to deceive the ordinary buyer making his purchase under the ordinary conditions which prevail in the conduct of the particular traffic.
    Appeal from a judgment dismissing the complaint.
    
      Rowland Gox, for app’lts; John Henry Hull, for resp’t.
   Parker, J.

This action was instituted to restrain the use by the defendant of an alleged infringement of plaintiffs’ wrapper. On the appeal from the order denying motion for an injunction pendente lite this court expressed the opinion that the wrapper complained of could not be regarded as such an imitation of the plaintiff’s wrapper as would be likely to deceive. The trial court, while holding that the plaintiffs are entitled to the exclusive use ■of the word “ Blizzard ” as a trade-mark for laundry soap, and the exclusive use of the wrapper which they employed to inclose ■cakes of soap, found as one of the facts, upon which it based the conclusion that the complaint should be dismissed, that the wrapper made use of by the defendant “ is not caculated to deceive plaintiffs’ customers, nor intending purchasers of plaintiffs’ Blizzard soap, and the public;” and, further, that the wrapper has not actually misled any person to buy soap manufactured by defendant in the belief that it was of plaintiffs’ manufacture. After an examination of the wrappers, we agree with the trial judge that the resemblance is not such that it is calculated to deceive the ordinary buyer making his purchase under the ordinary conditions which prevail in the conduct of the particular traffic to which this controversy relates; and a review of the -evidence requires a concurrence in his further finding that buyers have not been deceived by it. Plaintiffs’ were not, therefore, entitled to succeed. Fischer v. Blank, 138 N. Y., 244; 52 St. Rep., 339.

The judgment should be affirmed, with costs.

All concur.  