#### Fred. L. Lavanburg, Plaintiff, *v.*Isaac Pfeiffer, Defendant.

(Supreme Court, New York Special Term,

June, 1900.)

Trademark — Use of “ O. Vermilion ” and. “ P. Green” not an infringement of “ Oriole Vermilion ” and “ Peerless Green.”

Where the sale of dry colors under the names “ O. Vermilion ” and “ P. Green *”*is made in packages dissimilar from those used by a manufacturer of dry colors having a trademark in the names “ Oriole Vermilion ” and “ Peerless Green ”, and there is no proof of any intention of the vendor to induce customers or the public to believe that his article is that sold under the said trademarks, nor any proof of any representations upon his part to that effect, there is no unfair competition in trade.

Action upon a trademark.

Spiegelberg & Wise (Benjamin F. Einstein, of counsel), for plaintiff.

Abraham L. Jacobs (Samuel F. Jacobs, of counsel), for defendant

Smyth, J.

There is no question raised in this case as to the ownership by the plaintiff of the names “ Oriole Vermilion” and *“*Peerless Green,” in his business, and that the same have been- *691and are now used by him as trademarks or names upon certain dry colors manufactured and sold by him, nor is there any claim made by the plaintiff that the names *“*Oriole ” or “ Peerless ” appear or are used upon labels or vessels containing similar dry colors manufactured or sold by the defendant, or that there is any similarity in the vessels or packages used by the defendant with those of the plaintiff, by means of which the public could be deceived.

The plaintiff, however, does claim that the use of the names *“*0. Vermilion ” and “P. Green ” by the defendant amounts to and is in fact an infringement of the trademarks or names of *“*Oriole ” and *“*Peerless ”, and that the use of the letters “ O,” as applied to vermilion, and *“*P ”, as applied to green, amounts to, and is in fact, an unfair competition in trade, and this suit is brought to restrain the use by the defendant of the plaintiff’s said trademarks or names or any abbreviation of them.

When this case was before Mr. Justice Oohen, on a motion for a preliminary injunction, that learned justice held that the mere use of the letters “ O ” before vermilion and “ P ” before green, did not amount to an infringement upon the plaintiff’s trademarks or names of *“*Oriole Vermilion” and “ Peerless Green”, and in such conclusion I concur.

The evidence is voluminous and conflicting. The plaintiff’s testimony tending to show the illegal use of said trademarks or names by the defendant is confined to three or four transactions or sales of vermilion and green dry colors manufactured by him, and the use therein of the plaintiff’s trademarks or names, but this testimony is met and overcome by a clear preponderance of evidence introduced by the defendant, which convinces me that, in such transactions or sales, or attempted sales of the dry colors manufactured by the defendant, no representation was made to any customer or purchaser tending to induce a belief, that the dry colors so sold or attempted to be sold, were known as *“*Oriole Vermilion ” or *“*Peerless Green ”, nor with any design on the part of the defendant or his agents to induce a belief that the article of merchandise was that manufactured or dealt in by the plaintiff, or with the design to deceive the public.

Entertaining these views, it follows that the complaint- must he dismissed upon the merits, with costs.

Complaint dismissed, with costs.