Fleischmann v. Newman , 21 N.Y. St. Rep. 790 ( 1889 )

Macombeb, J.

The learned judge at the trial has found, by his eighth, ninth, and eleventh findings, that the form of packing compressed yeast used by the parties to this action is an ordinary and usual form of packing that substance; that the same has been in use by a number of persons and firms other than the plaintiffs and the defendant during the past 10 years; that in consideration of the nature of the substance, and of the size of the packages, the labels used by the plaintiffs and by the defendant, respectively, have substantial differences which are apparent to the casual observer. These findings are borne out fully by the evidence in the ease. Specimens, not only of the labels used by the parties, but of the packages designed for the trade also, have been submitted on this appeal to our inspection; and it appears therefrom that there is such a great dissimilarity between the two that no charge of simulating or infringing the plaintiffs’ trade-mark, or of imitating the design in which their packages are wrapped, can be maintained against the defendant. The only point of similarity between the two is in the shade of yellow which the ground-work of the labels has. In the case of both plaintiffs and defendant, the shade is lighter than that used by other dealers for 12 years past. But each has its distinctive characteristics, none of which would, be liable to mislead even a careless purchaser, as may plainly be seen by an inspection of the labels contained in the preliminary statement. Under these circumstances, the defendant cannot be deemed to have simulated the design of the plaintiffs’ package, so as to give a right of action against him, for the simple reason that he has done no more than other dealers have done in putting up packages of this description, which must necessarily be of about a prescribed size in order to be marketable, and there is no law of this state which prohibits a manufacturer or dealer from using the words “Compressed Yeast.” The manufacture of this article is open to all competitors, and they cannot be held liable in any action to restrain them where they plainly put their name upon the label, even though they do happen to use light yellow for the background of the paper upon which the description of the commodity is given. Enoch Morgan's Sons’ Co. v. Troxell, 89 N. Y. 292. Under these circumstances the judgment should be affirmed, with costs.

All concur.