
    Rebecca Babbitt, App’lt, v. David S. Brown et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Trade-mark—Infringement—Injunction.
    In an action to restrain the use of a printed wrapper used in packing and selling soap so far as it resembled that used by plaintiff, it appeared that there was a direct resemblance between the words used on the wrappers, both in size of type and style of letters, and that the color was the same; hut it was not shown that the wrappers were so used by defendants as to bring the words to the immediate view of purchasers. Held, insufficient to sustain an injunction pendente lite.
    
    (Brady, J., dissents.)
    Appeal from an order denying a motion to continue an injunction.
    
      Daniel G. Rollins, for appl’t; Rowland Cox, for resp’ts.
   Daniels, J.

The action is brought to restrain the use of a printed wrapper so far as it resembles that used by the plaintiff in packing and selling soap manufactured by her as the successor of Benjamin T. Babbitt, deceased, and from impressing the cakes of soap with the prominent words printed upon the wrappers. The deceased testator, and husband of the plaintiff, had for many years been engaged in the business of manufacturing and selling soap. The business under his management had become very extensive and profitable, and has so continued under the control of the plaintiff.

In or about the year 1881 the defendants, David S. and Delaplaine Brown, commenced the manufacture of soap for the defendants George and George K C. Punchard, which was stamped in a similar manner to the soap manufactured by the testator and by the plaintiff. Each cake of soap manufactured by the defendants Brown was enveloped in a wrapper similar in color to the wrapper which had been all along used in the Babbitt business, except that it was of a lighter shade. Prominent upon the wrapper used in the Babbitt business were the words in large type and three lines of

B. T. Babbitt’s

-Trade mark-

BEST SOAP.

And equally as prominent upon the wrapper used by the defendant were the words in three lines and about the same sized type

B. J. Butler’s

-Trade mark-

BEST SOAP.

The residue of the wrappers contain printed statements and directions for the use of the soap. Those on the plaintiff’s wrappers are much more extended than those printed on the wrapper used by the defendants. These differences are so great that, aside from the color of the wrappers, there is no reason for believing that purchasers of the defendants’ soap would be thereby induced to suppose that they were purchasing the soap manufactured by the plaintiff. The more immediately striking parts of the wrappers consist in their color and the three lines already mentioned. The words are placed upon each wrapper in the same general form, and in the size of the type and the style of the letters there is a direct resemblance between those used by the defendants and those on the plaintiff’s wrapper.

But while each cake of the soaps is contained in one of these wrappers, it has not been stated, or shown by the complaint, or the affidavits, that the wrapper is so used as to display these words, or to present them to the immediate observation of purchasers. The same words stamped into the cakes of soap cannot be a source of deception, for they are concealed from the immediate view of the purchaser by the wrapper completely enveloping the soap. If the purchasers were deceived at all, and the plaintiff was thereby injured in her business, it could only be by the words upon, and the coloring of the wrappers. And to obtain an injunction restraining the defendants from using the wrapper during the pendency of the action, it was for the plaintiff to maintain that such deception would naturally result from these appearances. And that could be done only by showing, if that were the fact, that the wrapper was so used by the defendants in wrapping and selling the soap as to bring these words to the immediate view and observation of the buyers of the defendants’ soap. It may be conjectured that this was the fact, but conjectural evidence will not maintain a preliminary injunction. But the facts upon which it is made to rest must be proved to a reasonable degree of certainty, and that has not been done in this instance.

A person prominently engaged in the plaintiff’s business when it was carried on by the testator, was informed of the sale of this soap in the year 1886. And he himself was informed in 1888, that Henry Punchard & Son were dealing in it. But they agreed to discontinue that business, after receiving a remonstrance from a person acting under the authority of the testator. Whether he in fact at any time had other information of the manufacture and sale of the defendants’ soap, or acquiesced in that sale or manufacture, it is unnecessary now to consider. For the' plaintiff has failed to prove that the defendants’ soap was so wrapped and presented for sale as to probably deceive persons intending to purchase the plaintiff’s soap into the belief that they were obtaining it when they bought that manufactured and sold by the defendants. Because of this defect the injunction was not sustained. And the order from which the appeal has been bought should be affirmed, with ten dollars costs and the disbursements on the appeal.

Van Brunt, P. J., concurs.

Brady, J. (dissenting)

I think the intention to derive benefit from the plaintiff’s manufacture and to deceive sufficiently appears both from the color of the wrapper and general mode of preparation shown. I dissent, therefore.  