Popham v. . Cole

Allen, J. The evidence is that the imprint or picture , of a hog has been used for many years by dealers in the different products of that animal, as ham, bacon and lard, by being painted or stenciled upon the packages containing those dif *74 •ferent articles; but it would seem that it was first used by being printed or stamped upon packages of refined lard by the plaintiff. That article does not differ essentially in appearance from crude lard, and the two can only be distinguished by experts. The refining of lard for market is of comparatively recent origin, and the process is principally resorted to when the lard is intended for shipment to warm climates. The sign or symbol may be employed with equal truth in respect to any parts of the dead swine or the products of that animal put up for sale, and no one dealer has a greater right than any other to' appropriate it to his own purposes. A serious question might be made as to the right of the plaintiff to appropriate to his exclusive use as a trade-mark the picture of the animal from which not only his lard but the lard of all ether dealers and manufacturers of lard is derived, especially when the same emblem or symbol has been used by dealers in lard and other products of the slaughtered hog indiscriminately as they have had occasion. But, passing this question, there are other difficulties in the plaintiff’s case which are insuperable. The judgment, which was reversed at General Term, ip. substance, declared the brand or mark used by the defendants representing the figure of a hog or pig upon their packages of lard, was a fraudulent imitation of the figure of the same animal, adopted and used by the plaintiff as a trade-mark, calculated to deceive; and adjudged that the plaintiff was entitled to the exclusive use of the symbol as a trade-mark upon lard, and perpetually enjoined the defendants from using or placing such symbol or device upon any package of lard traded in or put up or sold by them. The imitation of a trade-mark with a design to deceive the public, and which is liable to deceive them and enable the imitator to pass off his goods as those of him whose trademark is imitated, is a fraud upon the latter and a false representation to the public, and the injured party may have relief to the extent that the imitation is deceptive and liable to mislead. The purpose of all fraudulent imitations of trade-marks *75 is to impose the goods of the fraudulent actor upon the public as those of the owner of the mark, and when the imitation issuch that the success of the design is probable, a court will interfere by injunction and grant relief against the fraud. But to entitle a party to relief the resemblance of the simulated to the genuine trade-mark must amount to a false representation of the facts indicated by the genuine mark, that is, of the manufacture or proprietorship of the article. (Amoskeag Manuf. Co. v. Spear, 2 Sand. S. C. Rep., 599.) Words or phrases which indicate the character, kind, quality and composition of an article of manufacture cannot be appropriated by the manufacturer to his own use as a trade-mark. (Caswell v. Davis, 58 N. Y., 223; Taylor v. Gillies, 59 id., 331.) There is no objection taken to any part of the brand or label of the defendants save only the exhibition thereon of the figure of a wild boar. Every other part of it descriptive of the article, “ prime leaf lard,” and the names of the manufacturers, “W. J. Wilcox & Co.,” although in substance the same as that upon the plaintiff's brand or mark, except that the latter has his own name thereon as the manufacturer, is conceded to be innocent and lawful. The defendants’ trademark is not the same as that used by the plaintiff. They have upon their packages the imprint of an animal of the same genus as that appearing upon the plaintiff’s packages, but entirely unlike in appearance and characteristics, and placed upon a globe, which does not appear as a part of the plaintiff’s trade-mark. The question in this, as in every other case, is, whether there is such resemblance between the two as to deceive a purchaser using ordinary caution. The difference is so palpable here that no one can be deceived. The shape and general appearance of the pictured animals upon the two brands and their position, the one upon a globe and the other without such support; the one representing a small, lank and lean wild boar, and the other, a large, fat, well-conditioned domestic animal, are so entirely dissimilar that the one can hardly be said to be an imitation of the other, and clearly not a fraudulent or deceptive imitation. The brands and letter *76 ing descriptive of the article, and giving the names of the plaintiff, and defendants, respectively, as manufacturers, are entirely unlike in arrangement, size of the letters, and general form and appearance, insomuch that no one could mistake the packages of the defendants for those of the plaintiff. It is said by Lord Cuanwobth, in The Leather Cloth Company v. The American Leather Cloth Company (11 House of Lords Cases, 522), that the gist of the complaints in all these cases is that the defendant, by placing the plaintiff’s trade-mark on goods not manufactured by the plaintiff, has induced persons to purchase them, relying on the trade-mark as proving them to be of the plaintiff’s manufacture, and that this necessarily supposes some familiarity with the trade-mark. We may say in this case, as was said by the court in that, that to any one at all acquainted with the plaintiff’s trade-mark there could not be, even on the most cursory glance, any deception. There was no representar tian, direct or indirect, by the use of the device or symbol, whether by itself or in connection with the entire brand and mark of the defendants, that the article which they sold was manufactured by the plaintiff. The court is not bound to interfere where ordinary attention will enable purchasers to discriminate between the trade-marks used by different parties. The "maxims “ Vigilantibus non dormientibus leges subservient'' was applied by Lord Ckanwoeth in the case last cited, and the principle was affirmed in Partridge v. Menck (2 Sand. Ch., 622), affirmed by the chancellor (2 Barb. Ch., 101), and in this court, but not reported; see, also, Snowden v. Noah, (Hop. Ch. R., 396); Stokes v. Landgraff (17 Barb., 608). The order granting a new trial must be affirmed, and judgment absolute for the defendants. All concur. Order affirmed, and judgment accordingly.