#### The W. J. Johnston Co., Limited, App’lt, *v.*The Electric Age Publishing Co., Resp’t.

*(Supreme Court, General Term, First Department,*

*Filed May 15, 1891.)*

Injunction—Trademark—Similarity of title pages.

An injunction will not be granted upon affidavits where, although there is a similarity between the title pages of two publications, there arc also marked differences in the location of objects upon said title pages and in the colors used in printing them.

Appeal from an order denying a motion for an injunction.

*Thos. J.*Keigharn, for app’lt; *John Henry*Hull, for resp’t.

Daniels, J.

The plaintiff is the publisher of a newspaper devoted to the examination of electrical subjects, under the name of *The Electrical World.*The name has been combined with electrical structures and devices, to form and exhibit its title page. This was finally adopted from, and by way of improvement upon a preceding publication of the plaintiff, and likewise devoted to the consideration and discussion of electrical intelligence. The defendant has been the publisher of another newspaper devoted to the same subjects and its title page has been changed from that which characterized and identified it prior to the present year. Early in 1891 it was designated by the name of *The Electrical Age,*instead of *The Electric*Age, which was previously the name given to it; when this change was made, in the early part of 1891, other structures and devices were combined with the name, producing .a general resemblance to the title page of the plaintiff’s newspaper, but still differing in the location of the objects, and printed in and upon other and different colors.

While there are points of general resemblance, there are also features of striking diversity, rendering the inference at least somewhat uncertain whether the defendant is publishing its newspaper under such a form of title page as is calculated to produce the belief in the minds of subscribers or purchasers that the defendant’s is the paper of the plaintiff. If that could upon the affidavits and exhibits be concluded to be the fact, then the case would be one for an injunction. For that would be a violation of the plaintiffs’ rights, which no court could permit to be success*777fully devised and followed. *American Grocer Publishing Ass'on*v. *The Grocer Publishing Co., 25*Hun, 398; *Koehler*v. Sanders, 122 N. Y., 65, 72-4 ; 33 N. Y. State Rep., 267; *Vulcan*v. Myers, 11 N. Y. Supp., 663 ; 34 N. Y. State Rep., 122. But the conclusion that subscribers or purchasers will be deceived by the appearance of the frontispiece and title of the defendants’ newspaper into the belief that it is in fact the plaintiff’s publication has not been so certainly sustained as to present a case for an injunction •during the pendency of the action. It is not intended to be intimated that, after a full hearing of the evidence which may be adduced, the plaintiff may not be entitled to succeed. But simply for the present to say that the probability in its favor is not so free from substantial doubt as to entitle it to an injunction before the trial

At no remote period the issue between the parties can be disposed of upon a hearing of their testimony, which will form a more certain criterion for definite and certian action than the complaint and affidavits now before the court. And until then no serious injury can result to the plaintiff by allowing the situation to remain as it now is.

The order denying the injunction should be affirmed, with ten dollars costs and the disbursements on the appeal to abide the final result of the action.

Van Brunt, P. J., concurs.