
    Luyties Brothers, Appellant, v. E. Zimmermann and Company, Respondent.
    First Department,
    March 8, 1912.
    Trade mark—injunction — copy of trade mark calculated to deceive public — practice — injunction pendente lite.
    Suit to enjoin the defendant,from using a label alleged to be in fraudulent imitation of a label long used by the plaintiff. Evidence examined, and held, that the defendant’s label, though not an actual copy of the plaintiff’s label, so closely resembled it that equity would enjoin its use.
    To warrant such injunction it is not necessary that the defendant’s label be an actual copy of that of the plaintiff. It is sufficient if the resemblance be such as to deceive the ordinary purchaser.
    Where the imitation is apparent, use by the defendant will be enjoined pendiente lite.
    
    But where the use of a bottle by the defendant is not obviously unlawful, if used apart from the label, the use will not be enjoined pendente lite, but the issue left to be determined upon trial.
    Appeal by the plaintiff, Luyties Brothers, 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 2d day of January, 1912, denying the plaintiff’s motion for an injunction pendente lite.
    
    
      George W. Tucker, Jr., for the appellant.
    
      Abraham Benedict, for the respondent.
   Scott, J.:

The label adopted by the defendant presents a typical case of fraudulent imitation of the label long used by plaintiff, and is none the less fraudulent and objectionable because its separate features, when examined in detail, are not found to be copies of the corresponding features in plaintiff’s labels. The designer of the defendant’s label certainly displayed great ingenuity in producing a label which would closely resemble, without actually copying plaintiff’s label, but to justify the interposition of equity it is not necessary that a label should be copied. It is sufficient that the resemblance is such that it is calculated to deceive the ordinary purchaser under the conditions generally prevailing in the particular traffic to which the controversy results. (T. A. Vulcan v. Myers, 139 N. Y. 364; Fischer v. Blank, 138 id. 244; Anargyros v. Egyptian Cigarette Co., 54 App. Div. 345; Dutton & Co. v. Cupples, 117 id. 172.)

There is so little doubt about the defendant’s label that its use should be enjoined at once, without awaiting the result of a trial. The other features of defendant’s bottle of which complaint is made are not so obviously unlawful as is the label, and the question of enjoining the use of them or any of them may well be left to be determined upon the trial. If the use of the label be discontinued, the other features standing alone may not be found to be objectionable. The order appealed from must -be reversed, with ten dollars costs and disbursements, and the motion for an injunction pendente lite granted to the extent above indicated.

Clarke, McLaughlin, Laughlin and Dowling, JJ., concurred.

Order reversed with ten dollars costs and disbursements, and motion granted to the extent stated in opinion. Order to be settled on notice.  