
    Societe des Huiles d’Olive de Nice, Appellant, v. James Rorke, Respondent.
    
      Infringement of a, trade mark — failure of proof of ownership thereof.
    
    In an action brought to restrain the defendant from selling imitations of the olive oil of the plaintifE and from using a certain trade mark, it appeared that a person named Audemard, the manufacturer of the oil in question, had •appointed Thomas If. Dwyer & Co. his agents to sell the oil for five years from July, 1886, agreeing that during this time he would not sell his oils in the United States or Canada. Thereafter, in 1889, the plaintifE corporation was ■organized, and Audemard transferred his contract with Dwyer & Co. to it, at which time Dwyer & Co. agreed that.they would not sell any oils except those of the plaintifE and under the brand of Dwyer & Co.
    After the corporation was organized Audemard sold oil to it, and the corporation sold to Dwyer & Co. The label in question was invented by Dwyer & Co. while agents for Audemard, and was sent to Audemard, Who used it on the bottles. Subsequently Audemard and the plaintifE caused these labels, which did not mention the name of either of them, to he made, and charged Dwyer •& Co. for such of them as they used on bottles shipped to Dwyer & Go. It was not shown that the plaintiff sold, or that Dwyer & Co. advertised, any oil under this label as being the plaintiff’s own oil, or that it became known to the public as such.
    
      Held, that the action could not he maintained;
    That on the termination of the contract between the plaintiff and Dwyer & Co. the label or trade mark would belong to Dwyer & Co., and not to the plaintiff, and, consequently, was not the plaintiff's trade mark.
    Appeal by the plaintiff, Société des Huiles d’Olive de Nice, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint.
    
      George Putnam Smith, for the appellant.
    
      George A. Strong, for the respondent.
   Ingraham, J.:

The action is brought to retrain this defendant from preparing, putting up, selling or offering for sale, imitations' of the plaintiff’s olive oil, or using a certain trade mark described in the complaint, or any imitation -of the label or trade mark of the plaintiff.

The plaintiff is a corporation duly organized under the laws of France, and the complaint alleges that it is and has been for a long period the manufacturer and vendor of olive oil which, for six years past, has been offered for sale and sold in packages and bottles, which bottles were labelled with plaintiff’s own proper device and trade mark, a drawing of which is set out in full in the complaint, that the defendant is selling oil manufactured by persons other than the plaintiff, and that such oil is put up in bottles and packages in imitation of plaintiff’s, having a nearly similar label to that of the plaintiff’s, a drawing of which is also set out in the complaint.

To sustain this cause of action it was necessary for the plaintiff to prove that the trade mark or label, the use or imitation of which the action was brought to enjoin, was the plaintiff’s trade mark, invented and used by the plaintiff to designate its goods, and to the use of which it had the sole and exclusive right. In this respect the plaintiff’s proof fails. It is true that by the letter of July 22,1886, one Audemard, who was the manufacturer of the oil and who subsequently transferred his business to the plaintiff, in terms grants to Thomas R. Dwyer & Co., “ the sole and exclusive agency for the United States of America and Canada, for the sale of my olive oils, upon the following terms and conditions : ” The terms were that the oil was to be invoiced to Dwyer & Co., and payments were to be made by them by forwarding exchange on Paris to cover the amounts of such invoices. The agreement was to last for five years, with the privilege to Dwyer & Co. to renew the same for a further period of five years, Audemard agreeing that during that time he would not sell, give or dispose of in any manner, directly or indirectly, any of his oils for shipment to the United States of America or Canada, or for sale or use in either of those countries. It appears that subsequently, in 1S89, a corporation (the plaintiff) was organized; that the contract with Dwyer & Co. was transferred to such corporation by Audemard; that at that time the contract was modified by an obligation on behalf of Dwyer & Co. that they would sell no oils and waters except the oils of the Sociéte des Huiles d’Olivo de Rice, under the brand of Thomas R. Dwyer & Co., and that publicity was to be made of the brand of the plaintiff’s oil.

Under these contracts Audemard continued to sell oil to the United States, and after lie transferred Lis business to the plaintiff, the plaintiff continued to sell oil to Dwyer & Co.

Felix Andemard was examined as a witness under commission, and testified that the first shipments of oil consigned to Dwyer & Co. were made through the agency of the house of E. Normandin & Co.; that the oil was shipped to Normandin & Co., and was by them bottled and the label put on the bottles and the bottled oil shipped to Dwyer & Co., but in October, 1886, the oil was shipped directly by Audemard to Dwyer & Co. At that time Normandin delivered a parcel of labels and capsules which, prior to that time, had been placed upon the bottles in which this olive oil purchased from Audemard had been shipped to Dwyer & Co. It seems that this label had been devised by Dwyer & Co. and sent to Normandin & Co., to be used upon the bottles in which the oil was shipped, and after E. Normandin & Co.’s agency ceased, the labels were sent to Audemard, and he subsequently placed the oil in bottles and annexed the label thereto.

The first direct shipment by Audemard was made on the 14th of August, 1886. Audemard and the plaintiff caused these labels to be made, and on each shipment charged Dwyer & Co. for the amount they cost, at two francs a hundred; and to each invoice there was added to the price of the oil the price of the bottles, corks, capsules and labels, with the cost of bottling and packing. Audemard further testified that the plaintiff had never had an agent in the United States. Upon this label neither Audemard’s name nor that of the plaintiff is mentioned, nor is it any where stated that the oil sold under this label is the oil of the plaintiff. There is no evidence that Dwyer & Co. advertised the oil sold under this label as the plaintiff’s oil, or that it became known to the trade or the public as oil of the plaintiff’s manufacture. There is no evidence that the plaintiff sold any oil to any one as its oil under this label, except such oil as was shipped to Dwyer & Co., and which Dwyer & Co. sold under their own name at such prices as suited them, and upon such terms as they desired. Under their contract with the plaintiff they paid it for each shipment of oil according to the quantity sold, with the expenses of bottling it, putting on these labels and properly preparing it for sale. We think it quite clear that, on the termination of this contract between plaintiff and Dwyer & Co., this trade mark belonged to Dwyer & Co., and not to the plaintiff; and that the plaintiff could not, by appointing another agent, have used the trade mark to sell its oil through such other agent, and enjoined Dwyer & Co. from using it upon oil purchased by them, either from plaintiff or from any one else.

We think, therefore, that the plaintiff failed to prove that the trade mark, an infringement of which is sought to be restrained in this action, is the trade mark of the plaintiff, or that the plaintiff had any property therein.

The judgment was right, and should be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  