Wagner v. Daly

PUTNAM, J.

In Schneider v. Williams, 44 N. J. Eq. 391, 14 Atl. Rep. 812, to which we are referred by appellant, it' is held that one to acquire title to a trade-mark “must adopt some mark not in use to distinguish goods of the same class or kind already in the market, belong7 ing to another trader.” In Van Biel v. Prescott, 82 N. Y. 630, it is held that “to make an exclusive right to use a name or symbol as a trade-mark, such use must be new. If ever used as applicable to a like article, it cannot be exclusively appropriated.” In Selchow v. Baker, 93 N. Y. 59, it is determined that “where a manufacturer has invented a new name, consisting either of a new' word or words in common use, which he has applied for the first time to his own manufacture, * * * he is entitled tobe protected.” Plaintiff was not the inventor of the alleged trade-mark in question. She commenced using it on November 7, 1883. It was invented by Wischt & Smidt, engravers, on August 14, 1883, as a cigar label. On September 11, 1883, said firm sent samples of said label all over the country to the cigar trade. They sold the first labels to plaintiff on October 19, 1883, but prior to that time had sold 10 labels to one Pople, a cigar-box maker of Newark. It also appeared by the evidence of the witness Wischt that from the time said firm originated this label and offered it to the trade they had sold quite a number of such labels to other parties or other cigar-box makers for use in the cigar trade. Hence, while plaintiff was not the inventor of the word and symbol in question, neither was she the originator of such word and symbol as á cigar-box label. When she commenced using them they were on sale to the cigar trade in the country as cigar labels, and at least one lot of such labels had been sold to a cigar-box manufacturer. Therefore, under the case of Van Biel v. Prescott, supra, I do not think it appears that plaintiff’s use of the symbol and word in question as a cigar-box label was new. They were used before her adoption of them as applicable to alike article. Therefore the plaintiff fails to make out a case showing herself entitled to the exclusive use of the said alleged trademark. The plaintiff in fact in this action seeks to prevent the inventors and originators of said device from having the benefit of their invention. Of course, if purchasers from Wischt & Smidt of the labels in question cannot use them, the firm are prevented from a further sale thereof. . I think the trial court made a proper disposition of the case, and that the judgment of the court below should be affirmed with costs.

HERRICK, J., concurs.