Yellow Cab Co. v. Marks

Foster, V. C.

In view of the determination heretofore had at the instance of this complainant, the Yellow Taxicab Company, in which Vice-Chancellor Learning granted relief similar to that sought here, and which Vice-Chancellor Ingersoll later followed, and in view of the statements of counsel, which I assume correctly embody the facts set forth,in the affidavits on both' sides, coupled with my inspection of the cabs in question, and comparing them with the cabs of the complainant, I have reached the conclusion that as to five of the defendants, the temporary restraint asked for should be granted, or the temporary restraint embodied in the rule to show cause given by the chancellor should be continued until final hearing. In the case of what has been referred to by counsel as the lemon colored cab, Israel Myers, defendant, from my observation and comparison between his cab and that of the complainant company, I can’t see the slightest similarity in color, in design, in the words used*, nor any other feature of the cab that would deceive any other person witli ordinary eyesight either in the day time or the night time. As to him, I think the restraint should be vacated. I don’t think the complainant has established his right to restrain him from using a color which is as distinct and distinctive as the color of complainant’s own cab. 1 think Mr. Myers has what might be regarded as a unique color upon his cab, I don’t know that I ever saw its like, and I don’t know why he should not be permitted to continue in his enjoyment of it if it suits his taste. I don’t know ho-w many there are who might approve of it, but still he is entitled, he paid for it, and he is entitled to continue with that color if he pleases.

I will continue the restraint as to the others, and discharge it as to the defendant Myers. I don’t know as I can indicate what this generally means. They know now that they are' restrained from using the color of this complainant, and they can adopt any course they please to remedy the situation.