#### RECKITT & SONS, Limited, v. KELLOGG.

(Supreme Court, Appellate Division, First Department.

April 7, 1898.)

Trade-Marks—Injunction—Unfair Competition.

A manufacturer of goods sold in packages, even though he has no trademark, is entitled to be free from unfair competition; and if, in an action brought by him to restrain the same, it appears that defendant has intentionally so put up his goods that the size and form tif package, and color of wrapper, and distinctive style and color of the labels, are likely to, and do, mislead the unwary, and induce persons to purchase defendant’s goods, supposing them to be plaintiff’s, the plaintiff is entitled to an injunction, especially if the goods are of a class purchased by people who are easily deceived.

Appeal from special term.

Action by Reckitt & Sons, Limited, against James 0. Kellogg. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, INGRAHAM, and O’BRIEN, JJ.

Rowland Cox, for appellant.

I. N. Miller, for respondent.

RUMSEY, J.

The plaintiff is an English corporation, and a manufacturer of bluing, whose goods have been on sale in the markets of the United States for a period of nearly 20 years. Since the year 1878 the plaintiff has put up what is known as “block blue,” for sale in this • country. This article was put up in packages called “one-cube” and “two-cube” packages; and the plaintiff had adopted certain labels and wrappers, which had come to be recognized as distinctively used for *889its goods. The goods thus sold had acquired a well-known reputation in the market for superior excellence for the purposes for which they were intended to be used. The wrapper in which they were inclosed was peculiar in its color and markings, and one which would naturally attract the attention of buyers. The plaintiff complains that the defendant, who is also a dealer in bluing, has placed upon the market bluing in packages which resemble the packages of the plaintiff in size, shape, labels, and general appearance, and that the resemblance is calculated to deceive, and does deceive, the public; and it asks in this action for an injunction restraining the defendant from putting up its article in packages which so closely resemble the packages heretofore used by the plaintiff as to deceive unwary purchasers, and to enable dealers to sell the packages of the defendant for those of the plaintiff. Upon the trial the plaintiff made proof tending, as it insisted, to establish its allegations, but at the close of the plaintiff’s case the complaint was dismissed. The learned justice at special term held that there was no such similarity between the packages used by the plaintiff and the defendant, respectively, as would be likely to mislead persons who desired to purchase the plaintiff’s goods into taking those of the defendant; and, because he thought that there was no probability of deception, he dismissed the complaint.

No claim is made that the plaintiff had acquired a trade-mark in the distinctive form or color of the package which it used; and while, therefore, the plaintiff did not have the right to the exclusive use of any particular form of package, or color of wrapper, or manner of wrapping, and a mere general resemblance to the package used by it, not calculated to deceive, is not a wrong of which it has anv right to complain (Fischer v. Blank, 138 N. Y. 244, 33 N. E. 1040; Croft v. Day, 7 Beav. 84), yet it is entitled to be free from unfair competition; and if it shall appear that the defendant has so put up his goods that a comparison of the size and form of package and color of wrapper, and distinctive style and color of the labels, will show that the package so put up is likely to mislead the unwary, and to induce persons to purchase the defendant’s goods, supposing they were the plaintiff’s, the plaintiff would be entitled to restrain the defendant in the use of packages of that description; and especially would this be so if it should appear that the goods dealt in are purchased by people who are easy to be deceived. A comparison of the packages used by the two parties, respectively, shows a remarkable similarity in matters which are likely to catch the eye of the purchaser. The “two-cube packages,” as they are called, are'put up in paper of precisely the same color. The packages are of precisely the same size. The plaintiff’s package is surrounded by a label which covers two of the long sides and the two ends, and which is printed in a peculiar combination of colors. The labels upon the defendant’s package are placed in the same way. The same colors are used in a similar combination. The printing upon his package is, to a considerable extent, the same as that of the plaintiff. And, while a close examination reveals several minor differences, the general appearance of the package, even when held at arm’s length, is such that one might not only be very easily mistaken for the other, but is quite likely to be so mistaken. The *890remarkable points of similarity exist in those things which are likely to catch the eye, while as to those matters which are not at first blush apparent there is, upon examination, a considerable dissimilarity. With regard to the one-cube package the resemblance is still more striking. The plaintiff’s package is put up in a purple wrapper, with printing on every side of the package as the wrapper is folded. The paper in which the package is wrapped has printed upon it, in addition to the usual labels, a succession of black lines, which are quite noticeable. The defendant’s package is put up in tire same size and form, and wrapped in paper which, in color, might be the same as that of the plaintiff, slightly faded by exposure; the printing is in type of the same size, of practically the same form, and arranged in the same manner upon the package,—so that at a short distance the packages are almost precisely alike, except that the paper of the one is slightly lighter in color than that upon the other. These imitations are so peculiar and striking that they cannot be the result of accident. It appears, too, that several persons have been deceived into taking the defendant’s goods when they desired to have the plaintiff’s, and have not noticed the deception when the goods were sold to them. The case is clearly one within the rules laid down in Fischer v. Blank, supra, and the facts establish the right of the plaintiff to be protected against the colorable imitation of its goods made by the defendant. Indeed, all this is hardly disputed by the defendant himself; but he bases his defense upon a claim that the plaintiff itself has no special or peculiar right to use packages of the form and color and manner of marking in which it has been accustomed to put up its goods. The defendant claims that, before the plaintiff undertook the sale of these goods, other "dealers were in the habit of selling the same kind of goods in the same sort of packages, put up in paper of the same color, and with markings resembling those used by the plaintiff; and upon the argument he based his right to uphold the judgment which he obtained largely upon the existence of these facts. The trouble with the defendant’s position is that these facts were not made to appear. It is not necessary to consider what would have been the rights of the plaintiff if it had been shown that some other person had been in the habit of putting up his goods in packages to which those of the plaintiff bore a close resemblance, because no such facts appear, and for that reason the defense failed in that particular.

A careful consideration of the evidence leads to the conclusion that the defendant’s manner of business was likely to deceive persons who had been in the habit of buying the plaintiff’s goods, and to mislead them into taking the defendant’s goods instead, and that it was intended for that purpose; and for that reason we think the judgment of the court below should be reversed, and a new trial ordered, with costs to the plaintiff to abide the event. All concur.