#### The Monopol Tobacco Works, Plaintiff, *v.*Abraham Gensior, Defendant.

(Supreme Court, New York Special Term,

June, 1900.)

Trademark — Infringement.

A tobacco label must be deemed an infringement of that of another manufacturer where, although points of difference exist, there is such a general resemblance, in the forms, symbols, marks, arrangement and appearance of both labels, as would be apt to deceive an ordinary buyer purchasing under the ordinary conditions of the tobacco trade.

The fact that the similarity is restricted to the top of the box, and that the wrappers on the bottom are essentially different, does not make the use of the imitating label any the less an infringement.

Motion for an injunction.

Philipp, Sawyer, Rice & Kennedy, for plaintiff.

House, Grossman & Vorhaus, for defendant

Leventritt, J.

It is quite evident from an examination of the several labels and of the various affidavits submitted on this motion, that there has been an attempt to imitate the label of the plaintiff, and the question is whether the imitation has progressed to an invasion of the plaintiff’s rights. Will a purchaser of ordinary caution be deceived? Is the similarity such as is calculated to mislead the careless and unwary? Colman v. Crump, 70 N. Y. 573. Disregarding the conflicting affidavits as to alleged instances of confusion and deception and resting the decision of this motion solely on a comparison of the several labels, I am of the opinion *88that an injunction should issue. There is a general resemblance of the forms, symbols, marks, arrangement and appearance, and is such as is apt to deceive “ the ordinary buyer making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates”. Fischer v. Blank, 138 N. Y. 244. The fact that the similarity in the labels is restricted to the general arrangement, appearance and details on the top of the box, while the wrappers on the bottom are essentially dissimilar, does not make the use of the defendant's label less of an infringement of the plaintiff’s right. “ It is the top which is usually exposed to the eyes of the buyer, and from which the impression would be produced as to the brand of the article offered for sale ”. T. A. Vulcan v. Myers, 139 N. Y. 364.. The essential points of similarity which compel a granting of this injunction are these: Both labels have light, clouded backgrounds and are of exactly the same dimensions. In the center of each is a circle of equal radius with a light-colored perimeter of equal width. Within the plaintiff’s circle is a coat of arms; within the defendant’s, a balloon with a medallion on either side. The space between the circumference of the circle and the side edges of each label is occupied by streamers or pennants identical in size, shape and inscription; one pennant bears the inscription “ Turkish Tobacco ”, and the other, *“*Egyptian Cigarettes ”. Above the plaintiff’s circle in fancy red letters conforming at their lower edges to the circumference is the word “ Monopol ”. Above the defendant’s circle in similar red letters similarly conforming are the words “ North Pole ”. Beneath the circle on each label are the words “ Tobacco Works ” in letters of the same design, color and conformation; and below this lettering are the words *“*New York ”, alike in every respect. The plaintiff’s label has the word “ No.”, in red letters in the upper left-hand corner and the figure *“*27 ” in red in the upper right-hand corner. The defendant’s label has the same arrangement except that the figure “ 37 ” is substituted. It is only in that regard, and in the use of the words “ North Pole ” for “ Monopol ” that there is any difference in the size, shape, or color of the lettering, there being absolutely none in the location. Both labels are so designed and printed as to throw into prominence the circle with the surrounding words “Monopol Tobacco Works” in the one and the circle with the surrounding words “ North Pole Tobacco Works ” in the other. *89Of course, there are differences between the two labels. But the cases in which the infringement is an exact copy are rare, if not entirely unknown. Nor does the fact that the dissimilarities appear more prominently when the wrappers are placed side hy side constitute a valid test. Liggett & Myer Tobacco Co. v. Hynes, 20 Fed. Repr. 883; Lawrence Mfg. Co. v. Lowell Hosiery Mills, 129 Mass. 325. That is not the usual way in which purchases are made. Experts may not he deceived, nor even the eye of the layman on the lookout for points of difference. But such a test would serve no practical use. It is the effect on the purchaser, and the inquiry is, will he he deceived by the delineations or impressions on the label into believing the article the product of a rival manufacturer, especially in the absence of any cause for suspicion or watchfulness? So measured, I am satisfied that there has been such an infringement as this court in the exercise of its equitable jurisdiction should enjoin.

Motion granted, with ten dollars costs.