Selchow v. Baker

Beach, J. The exceptionally learned brief of the appellants’ counsel, shows the question involved in this appeal to have been exhaustively considered by the courts. The legal principle has been defined with exactness, leaving only a contention whether or not each case falls within its bounds. The terms “ sliced animals,” “ sliced birds,” and “ sliced objects,” seem to me arbitrary words, applied by the respondents to their manufactures, and in no manner descriptive of the articles. They would not impart to anyone unacquainted with the games or puzzles the least idea of what they were. The paper strips are not sliced animals, birds or objects, and the words seem equally arbitrary as “ pride ” applied to segars or “ 303 ” to steel pens (Hier v.Abrahams, 82 N. Y. 519 ; Gillott v. Esterbrook 48 N. Y. 374). Although lexicographers may define the verb “ slice ” as meaning “ to cut into parts,” the other definitions “ to cut off a thin, broad piece,” “ to cut into pieces broad and flat,” accord better with popular usage. Card-board cut into [358] strips, would not naturally be termed sliced card-board, and if on it were pictures of animals, the strips then having on each a part of the animal would not properly be called sliced animals, even by those knowing the pieces to constitute a game or puzzle. These designations, to a stranger seeking the games, would themselves give no idea of what the box contained. In the case of Van Beil v. Prescott (82 N. Y. 630), the exclusive right was denied plaintiff to.use the name . “ Rock and Rye ” to designate a mixture composed of rock candy and rye whiskey. It is true those terms would not impart a knowledge of the ingredients of the compound being candy and whiskey, yet they did indicate the nature, kind or quality of the article. In other words, they belonged to the precise and proper designation, and could not be made a trade-mark by leaving out other words which when added would give more exact information. The order should be affirmed, with costs and disbursements. Yah Brwt and Yah Hoeseh, JJ., concurred. Order affirmed, with costs.* Footnotes [*] The order entered upon this decision was affirmed by the Court of Appeals June 19th, 1883 (See 93 N. Y. 59).