
    Societe des Huiles d’ Olive de Nice, App’lt, v. James Rorke, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    Trade-mark—False representations.
    The evidence was held not to establish that the trade-mark, used by defendant on his label, was a representation that the goods sold by him, were manufactured by plaintiff, or that plaintiff ever obtained title to the label sought to be enjoined.
    Appeal from an order" denying an injunction pendente lite.
    
    
      George Putman Smith, for app’lt; Aaron Pennington Whitehead, for resp’t.
   O'Bbien, J.

The defendant and one Thomas N. Dwyer were partners from February, 1884, until October, 1893, in the wine and olive-oil business, under the firm name of Thomas N. Dwyer & Co. They purchased their oil in Europe, w’hich was put up in cases, tins, and bottles bearing a certain label, concerning the right to use which this controversy arises. The plaintiff’s claim was that the oil was manufactured by one Audemard, who in 1887 transferred to the plaintiff his business and property, and that, in the sale of their oils, Dwyer & Co. acted as agents. They used the following label:

In 1893, Dwyer & Co. dissolved, and the assets were sold at auction by the receivers of the firm, among which assets was in-eluded the label that had been used upon the oil, which was purchased by the defendant, who obtained from the receivers a bill of sale or assignment thereof. Thereafter, the defendant, having continued in business on his own account, entered into a contract with another firm at Nice, for oil, which was put up in suitable packages, and upon which was placed the following label:

In a circular to his customers the defendant states :

“I shall continue to import the oil in the same style packages as heretofore, except that I have made a few slight changes in the label by way of improvement. I have substituted the name of the producers,” etc.

The use of this lable is claimed to be an infringement upon the plaintiffs right, and the portion of the circular quoted is charged to be false'and misleading, and intended to impress the public with the fact that the oil now .sold by the defendant is the same oil formerly imported by Dwyer & Go.; and it is to enjoin the use of the label and the sending of the circular that the action is brought.

There is a similarity in the labels, but it is to be noticed that, while the plaintiff’s has upon it the name of Thomas N. Dwyer & Go., the defendant’s has the name of Louis Caisson & Cie, substituted as the producer; and it is clear" that this destroys any claim that there is a representation that the oil now sold by' the defendant is manufactured by the plaintiff. Nor can we find that in the wording of the circular there is any distinct false representation, the source from which the oil was obtained being clearly set forth by giving the producer's name. In other respects there is a similarity in the label; and if it were the property of the plaintiff, in which he had acquired a trade-mark, then it is clear that the defendant should not be permitted to use it.

In the affidavit used upon the motion the plaintiff stated that “in or about the month of May, 1884, deponent, who was then in Europe, secured the agency of the house of Felix Audemard, manufacturers and dealers in olive oil, and a certain label was then devised or contrived by said Audemard for a brand of olive oil and this is followed by a statement that the labels were thereafter used upon such oil until Audemard sold his property and interest to the plaintiff, who thereafter continued to use the label upon oils exported by it for Dwyer & Co. That this is not a correct statement of the origin of the label is not only apparent from the answering affidavits, but, as we understand it, is now conceded by the plaintiff. It now appears that the label in dispute was devised in 1884 by Dwyer and one Maignen, while traveling in France ; that at that time Dwyer & Co. were purchasing olive oil from the firm of E. ISTormandin & Co., with which firm Maignen was connected ; and that the label was used upon the oil so purchased down to July, 1886. During that period it bore upon its face the name of Thomas FT. Dwyer & Co., and the name of E. FTormandin & Co. was in no way used, the trademark appearing to be the property of Thomas FT. Dwyer & Co. When Dwyer & Co. began to buy of Audemard, in 1886, no change was made in the label, nor did Audemard’s name appear upon it; and it was thus used until 1889, when, Audemard having sold out to the plaintiff, a new contract was made with Dwyer & Co., by which the latter was to sell no oils but those of the plaintiff, and they were to be sold under the brand of “ Thomas FT. Dwyer & Co.” In this agreement the latter firm are styled “agents,” but the fact appears that they were merely purchasers of oil. It is not claimed that ISTormandin & Co. ever transferred the trade-mark in question to Audemard, nor do we find any evidence that Audemard ever undertook to transfer the label to plaintiff, though it might follow, if the title to the label had been shown to be in Audemard, that by reason of the purchase of the business the plaintiff succeeded to his rights in the label

Apart, therefore, from other questions in the case, we do not think that there is sufficient appearing to show that the plaintiff ever obtained title to the label; and this, we think, would be apparent had the action been brought by plaintiff against Dwyer & Co. prior to the dissolution of that firm to restrain their use of the label. Such labels did not purport to sell the plaintiff’s oil, nor was the plaintiff’s name in any way upon them or connected with them, the contract being, as already stated, that the plaintiff’s oils were to be sold “under the brand of Thomas FT. Dwyer & Co.;” and, in connection with such sales as were made, the label devised by Dwyer and another person, in no way connected with the plaintiff or its predecessor, was used. Whether or not, therefore, the defendant acquired any right to use the label upon the purchase from the receiver, we think it clearly appears that the plaintiff had no such right therein as would entitle it to maintain an action to enjoin the defendant from infringing upon its property rights.

Upon all the facts appearing, we think the judge below was-right, and that the order appealed from should be affirmed, with costs.  