
    James Rorke, Appellant, v. Société des Huiles d'Olive de Nice and Thomas H. Dwyer, Respondents.
    
      Trade mark — sale of, by a receiver of a firm — injunction.
    
    A plaintiff in an action "brought to restrain the use of a trademark or label, must, in order to obtain an injunction pendente lite, show that he is the owner of the trade mark or label, and is entitled to its exclusive use, and that the defendants, are wrongfully and to his detriment using or imitating it.
    Where, at an auction sale of the assets of a copartnership by a receiver appointed in an action for its dissolution, one of the partners buys a trade mark or label, owned and used by the firm, the other partner, having received the benefit of the purchase price, is estopped from claiming the right to use the trade mark or label adversely to, of in competition with, the purchasing partner.
    Appeal by the plaintiff, James Rorke, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of December, 1896, denying his motion, for an injunction pendente lite.
    
    The action was brought to restrain the use of a trade mark or label which the plaintiff claimed to own, and for an accounting of the profits realized upon goods sold under such trade mark or label.
    
      George A. Strong, for the appellant.
    
      George Putnam Smith, for the respondents.
   Patterson, J.:

This is an appeal from an order denying the plaintiff’s motion for an injunction to restrain the defendants from using a trade mark or label, the ownership of, and the exclusive right to use which, is claimed by the plaintiff. The court below refused to grant an injunction pending suit on the ground that the plaintiff had not made out a sufficient case for an injunction, it appearing that all the equities were denied in the papers used in' opposition to the motion.

An examination of the record satisfies us that the injunction should have been granted. . It was incumbent upon the plaintiff to show, in order that he might be entitled to this injunction, that he was in fact the owner of the trade mark, entitled to its exclusive use, and that the defendants were wrongfully and to his detriment using or imitating that trade mark or label. Those things were abundantly shown. The plaintiff’s ownership was not only made out by independent or original proof, but, as between it and the defendant society, it had been established by an adjudication of this court. The facts, -as they appear in this connection, are the following, viz.,, the plaintiff and the defendant Dwyer, prior to October, 1893, composed the firm of T. E. Dwyer & Co.; they were merchants in the city of Rew York, and dealers, among other things, in olive oil imported from Rice, in France. In the conduct of their business they liad designed and used a trade mark or label, a specimen of which is set out in the complaint. That label was only used as designating goods imported and sold by that firm. The trade mark or label did not belong to the manufacturers or exporters of the goods. Those goods were not soldi by T. R. Dwyer & Co., as the agents of the exporters, but that firm bought and paid for, under, certain contracts, the goods they imported and sold in this country. Originally they bought goods of Rormandin & Co., then of one Audemard, afterwards of the Société des Huiles, etc. ' The oil, when purchased in France, was bottled by the manufacturers, and the label ■designed and used by Dwyer & Go. seems to have been put upon the bottles in France by the manufacturers of the oil, and when Dwyer & Co. ceased to buy oil of Rormandin & Co. labels in the possession of, but not used by, the last-named firm, were sent to Audemard, and while Dwyer & Co. carried on business with him, such labels were put on the bottles bought from him, and when they ceased dealing with him and began to transact business with the Society, labels of Dwyer & Co. were put on the bottles by the Society, but Dwyer & Co. always paid for them. After October, 1893, difficulties arose between Dwyer and Rorke, and a hill was filed to dissolve the partnership existing between them. At that time they were importing the oil cf the Society under a written contract. In that action receivers were appointed by consent, and those receivers were authorized to sell all the assets and property of the firm, among such, assets and property being the trade mark or label and the contract with the Société des Iluiles. The sale was at auction, and, consequently, was open to competition, but, in the nature of things, the trade mark and the label were property of such a character that competition would necessarily be restricted to the two partners of the firm. Rorke bought in the trade mark or label, and the fact that Dwyer allowed him so to do is acquiescence on his part in the purchase made by his former partner, and that is sufficient to estop Dwyer from making any claim to a right to use that trade mark adversely to or in competition with Rorke, for in the adjustment of the copartnership business by the receivers he, Dwyer, received whatever benefit may have been derived from that transaction. But as to the Society the plaintiffs ownership is established by an adjudication of this court. The Society brought an action against Rorke to restrain his use of the trade mark or label. Issue was joined, Rorke setting up his right and title. The Society claimed that it owned the trade mark and that- Dwyer & Co. were merely its agents and used the trade mark as its agents. On the trial of the cause the court found as matter of fact that the Society was not the owner; that Dwyer & Co. did not use the trade mark or label as its agents, but, on the contrary, that it was the property of that firm. The judgment of the trial court was affirmed by the Appellate Division, and that ■question respecting the ownership was ■ set at rest by the adjudication in the action referred to, and is conclusively established so ffir .as any matter litigable between the parties to this action is concerned. It is asserted, however, by the defendants that the label and trade mark were originally devised only to designate oil pror dnced and supplied by particular shippers, namely, Audemard, and afterwards the Society; and that, by virtue of the relations established between the Society and Dwyer & Co., the plaintiff must be restricted in the use of his property right in the label and trade mark to oil manufactured or produced by the Society. ' That position is not maintainable. The label and trade mark were not designed to indicate any particular manufacture of oil, except such as-was produced at Nice,-in France. Dwyer & Co. devised and used the trade mark long before purchases of oil were made either from Audernard or the Society,' and there was nothing, so far as these papers show, in the contracts either with Audemard or the Society, which limited Dwyer & Co. to the use of the label or trade mark upon oil produced by them only. It does not lie with the Society to say that Eorke cannot use this label and trade mark in his business as a merchant selling olive oil produced at Nice. It declines and refuses to sell him oil,, although it was notified that he was the purchaser of the contract on the sale of the assets 'of the copartnership of which he was a member. We' do not mean to say that the Society was bound to sell- him oil, but it cannot be heard to say that Eorke cannot use the trade mark and the label which he purchased; and Dwyer'is estopped from so saying because of the title and ownership which ■ was conferred upon the. purchaser by the assignment made by' the receivers,' and from which, .presumably, he received whatever benefit may have arisen out of the payment of the purchase money. Nolis there anything at all in the claim that the plaintiff is making false representations or deceiving the public in the use he makes of the label and trade mark. There is nothing whatever to indicate on the face of the label that- Eorke is selling the oil of the Society. Its name does not appear in any way on the label or trade mark. • On the contrary, it plainly appears that it is not the oil produced by the Society that is sold by. the plaintiff, but the oil of Louis Caisson & Co. The equities of the case, notwithstanding the defendants’ denials, are altogether with the plaintiff, and the court below erred in refusing to grant the injunction applied for.

The order must be reversed, with ten dollars costs and disbursements, and the motion for an injunction granted, with ten dollars costs to abide the event.

Van Bjrunt; P. J., Williams, O’Brien and Ingraham, JJ\, concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted!, with ten dollars costs to abide event. 
      
      5 App. Div. 175. — [Rep.
     