Brown v. Seidel , 153 Pa. 60 ( 1893 )

Per Curiam,

There is no such similarity in the trade-marks used by the respective parties to this controversy as to justify the conclusion that the one is intended as an imitation of the other. This is so palpable upon inspection that any discussion of the subject is unnecessary. In fact, the complaint of the plaintiffs is not so much that the defendants have pirated their trademark as that they put up their goods in a form and style of package which resembles those of plaintiffs.. The respective parties are engaged in the manufacture and sale of an article of stove polish, and there certainly is a resemblance in the size of the packages, and in the manner in which they are put up, between those of the defendants and the plaintiffs. They both use tin foil as wrappers for the stove polish, over which is placed a paper wrapper of similar colors. The packages as thus put up might perhaps induce an ignorant or a careless person to mistake the one for the other, provided he made no examination whatever. The mere possibility of a mistake, however, is not sufficient. As was said in Heinz v. Lutz, 146 Pa. 592: “ It is not enough that there may be a possibility of deception. The offending label must be such that it is likely to deceive persons of ordinary intelligence.” See authorities there cited.

We are not prepared to say that the mere resemblance, accidental or otherwise, in the size and style of putting up packages, is of itself sufficient to justify the interference of a court of equity.

Where there is an actual infringement of the trade-mark itself, or where the resemblance of the one to the other is such as to leave the fact of imitation in doubt, the fact that the party charged with such imitation has also adopted a like style of putting up his packages, may be some evidence upon the question of intention. It is only where there is a manifest intent on the part of one manufacturer to sell his goods as and for the goods of another manufacturer that the aid of equity has been successfully invoked to restrain it. This whole subject has been so recently and fully discussed by this court that we do not think it necessary to elaborate. See Hoyt v. Hoyt, 29 W. N. C. 309; Heinz v. Lutz, supra, and other cases.

The decree is affirmed and the appeal dismissed at the costs of the appellant.