
    Plasterer et al. v. Cross et al.
    
      Injunction — Unfair competition — Similarity of appearance of packages.
    
    An injunction will be granted restraining the defendant from placing on the market a product similar to that being marketed by the plaintiff, in packages similar in size to those sold by plaintiff, the wrappers and labels being of the same color and design and the packages so nearly like those containing plaintiff’s product as to deceive or mislead the average purchaser using ordinary care, where defendant’s product is used for the same purposes as plaintiff’s and the package is of such similar appearance that it could not have ¡been adopted except with intent to deceive prospective purchasers and promote the product’s sale.
    (Decided December 18, 1922.)
    Appeal: Court of Appeals for Butler county.
    
      Mr. Frank W. Krehbiel; Mr. Edward L. Reed, and Mr. Harry S. Wonnell, for plaintiffs.
    
      Messrs. Bickley & Bickley, for defendants.
   Buchwalter, J.

This is an action for injunction, accounting, etc., because of what is claimed to be unfair competition on the part of the defendants in the sale of a certain cement for patching cloth, and it comes to this court on appeal from the court of common pleas of Butler county.

The plaintiffs are the owners and manufacturers of a cement which they have placed on the market, known as “Darn-E-Z.” This cement is con tained in a tube covered with blue labels or wrappers, upon which is printed in an oval the partial figure of a woman, holding some stockings. This oval design also contained the words “Darn-E-Z.”

The plaintiffs have advertised this product, placed it on the market, and contend that they have developed a profitable business.

Verne 0. Cross, one of the defendants, acted as one of plaintiffs’ agents for the sale of this product, and during such time produced and began to advertise and sell a similar product, which was called “P'atch-E-Z,” and later was designated as ‘1 Patch-Kwick.’’ Both “Patch-E-Z” and “PatchKwick” were contained in tubes of similar size to those sold by plaintiffs. The wrapper and label were of the same color; the oval space was the same size; the picture or illustration was the partial figure of a woman holding a piece of cloth, and contained the words “Patch-E-Z” or “ Patch - Kwick.” The printed matter both on the front and rear of the label is very similar both in context and appearance.

An examination of these tubes or packages and a comparison shows them to be so nearly alike as to deceive or mislead the average purchaser, using ordinary caution.

We do not comment on the various authorities cited, as the principles of unfair competition have been so often stated that a discussion of them herein is not necessary.

The question of unfair competition has to be decided from the circumstances in each case. This case presents a product, sold by the defendants, which is used for the same purposes as that of plaintiffs. The color, general design, oval, picture, and printed matter on the wrapper are so similar that they could not have been adopted except with intent to deceive or mislead prospective purchasers, and to promote the sale of this product to those who might believe it was the cement known and advertised as “Barn-E-Z.”

It is claimed by the defendants that the wrappers and designs now used and identified in this case as Exhibits F and G- are not similar to those of “Bam-E-Z,” in that the tubes are painted instead of being covered with a paper wrapper; that the color is a different shade of blue; that the printed matter is not quite the same; and that the oval is smaller.

From an examination of these packages, to-wit, Exhibits F and G-, it appears that their general appearance is so similar to the package containing “Barn-E-Z” cement as to mislead the average purchaser.

It is also contended that as no decision was rendered by the court of common pleas as to whether or not there was unfair competition in the use of the packages, such as Exhibits F and G, this matter is not before this court. Suffice to say, this cause has been appealed, and the entire case is therefore before us for consideration and determination.

An accounting has been asked, and a statement filed by the defendants in this court, which we believe to be substantially correct. To appoint a master and endeavor to secure a proper audit, where no adequate record has been kept, would only result in more expenditure than we believe the result would warrant.

The cross-petition of Verne 0. 'Cross, seeking damages for a rescission of Ms contract with the plaintiffs, is not sustained by the evidence.

We shall allow as damages to plaintiffs the sum of $500.

The injunction will be granted against placing the cement known as ‘ ‘ Patch-E-Z ’ ’ and “PatchKwick” on the market in packages such as were originally used, and known as Exhibits 7 and 8; and also against the use of the words “Patch-E-Z” and “Patch-Kwiclc,” and the oval design on the packages, which are designated as Exhibits F and G.

Injunction allowed.

Hamilton, P. J., and Cushing, J., concur.  