#### TUERK HYDRAULIC POWER CO. v. TUERK et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Trade-Marks and Trade-Names—Infringements—Injunction.

Plaintiff, the name of which is known to the trade as the Tuerk Water-Motor Company, is. entitled to enjoin defendants, the members of the firm of the “Tuerk Water-Meter Company,” from using such firm name, or any other substantial imitation of plaintiff’s name, or cuts and printed ' matter in advertisements used by it prior to formation of defendants’ firm, or any substantial imitation thereof, the adoption thereof by defendants having been not only with the purpose of representing to the public that the motors sold by defendants were those of plaintiff, tint being calculated to have, and having, that result with ordinary purchasers, in the exercise of ordinary care and caution.

2. Same—Damages.

The finding of damages is not essential to the granting of injunction, against use of infringing trade-names and trade-marks.

Appeal from judgment on report of referee.

Action by the Tuerk Hydraulic Power Company against Frederick W. Tuerk, Jr., and others, for injunction. From a judgment for plaintiff, entered in Onondaga county on report of referee, defendants appeal.

Affirmed.

In the judgment it is adjudged: “That the defendants Frederick W. Tuerk, Jr., John Hunter, and James O. Hunter, and each of them, be, and they are hereby, perpetually enjoined and restrained from using the name of ‘The Tuerk Water-Meter Company,’ or any other substantial imitation of the name ‘The Tuerk Water-Motor Company,’ and from printing, publishing, issuing, or circulating any of the cuts, pictures, prints, or printed matter used by the plaintiff in its catalogue or circular prior to the formation of the defendants’ firm, or any substantial imitation thereof;” which judgment is in accordance with the conclusion of law found by the referee. The referee found as matter of fact: “That the adoption by the defendants of their said firm name, their location at Syracuse, and using and circulating of the said circulars and cards were for the purpose and were intended or calculated to represent to-the public that the motors sold by the defendants were those of the plaintiff, and to confound the identity of the business carried on by -the plaintiff and that of the defendants; that the similarity of the name of the plaintiff as-known to the trade—such name being ‘The Tuerk Water-Motor Company’— and that adopted by the defendants is sufficient to deceive or mislead the ordinary purchaser in the exercise of ordinary care and caution; that iliense by the defendants of the copartnership name adopted by them would tend to falsely represent the manufacture or proprietorship of the goods manufactured by them, and to confuse the same with those of the plaintiff.” No-*385damages were allowed to the plaintiff. An injunction was authorized in the language substantially found in the quotation already made from the judgment, with costs of the action.

Argued before HARDEN, P. J., and MERWEN and PARKER, JJ.

Wilson, Kellogg & Wells, for appellants.

William B. Ellison, for respondent.

HARDIN, P. J.

Having carefully read the evidence found in the appeal book, the conclusion is reached that the findings of fact made by the learned referee are sustained by the testimony offered before him at the trial. We think the evidence indicates very clearly that the use by the defendants of the name “The Tuerlc Water-Meter Company,” and the practices in respect thereto adopted by the defendants, led to confusion arising from its similarity to the name of the motor of the plaintiff, and that the similarity was such as to cause persons dealing in the articles to suppose it to be the same. In Manufacturing Co. v. Spear, 2 Sandf. 599, it was held that every manufacturer has an unquestionable right “to distinguish the goods that he manufactures or sells by a peculiar mark or device, so that they may be known as his in the market, and he may thus secure the profits which their superior repute as his may be the means of gaining.” In Colman v. Crump, 70 N. Y. 573, it was said:

> “It is not necessary that the symbol or device complained of should be a facsimile of the genuine trade-mark, or so close an imitation as to be distinguished only by an expert, or upon critical examination by one familiar with ilie original. If the resemblance is such as to deceive a purchaser of ordinary caution, or if it be calculated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade-mark, it is a violation of his property rights therein, and he may maintain an action to restrain such violation, and to recover damages therefor.”

A similar doctrine was stated in Tallcot v. Moore, 6 Hun, 106. In Popham v. Cole, 66 N. Y. 69, it was said that:

> “When ordinary attention on the part of customers will enable them to discriminate between the trade-marks of different parties, the court will not interfere.”

We think the evidence in this case warranted the referee in finding that the case before him came within the rule of law which the cases we have referred to support. We think the contention of the defendants is not aided by the case of Forney v. Publishing Co. (Sup.) 10 N. Y. Supp. 814, as in that case there was no evidence showing actual confusion in any instance from the claimed similarity in names. The referee found that prior to the spring of 1886 Frederick Tuerk was in the employ of the plaintiff, and had charge of the preparation of catalogues and circulars for the plaintiff, and that lie frequently used as an illustration the picture of a girl seated by an open window, operating a sewing machine with the help of a motor; and in connection with this picture a statement, purporting to have been made by a government official at Washington, that women should not be permitted to run sewing machines in the ordinary way. Thereafter the referee found that in the spring of 1886 *386Frederick W. Tuerk severed kis connection with the plaintiff, and entered into a partnership with the defendants under the style of “The Tuerk Water-Meter Company,” and that the partnership had its place of business at Syracuse, N. Y.; and that, although the partnership was organized for the purpose of manufacturing a water meter, invented by Tuerk, no meters were actually made or sold; and that some time prior to December, 1886, the copartnership began the manufacture of a water motor similar in general appearance to that of the plaintiff. After such facts were found by the referee in his report, we think it was entirely proper, upon the evidence before him, to find that the defendants soon thereafter issued and circulated to the public illustrated catalogues advertising the manufacture and sale by the Tuerk Water-Meter Company of a water motor called “Tuerk’s New Water Motor,” and that upon the motor itself it was designated as the “Tuerk Motor, Syracuse, N. Y.”; that in the circulars issued there appeared a cut or picture of a girl at a sewing machine beside a window, with a motor bearing the name “Tuerk Motor,” so similar to that theretofore used by the plaintiff and heretofore mentioned “as to be indistinguishable without comparison”; that these circulars were followed by several others, also issued and published by the defendants, and containing the same picture and testimonial. Upon the facts found by the learned referee we think his conclusion of law was correct wherein lie states that the plaintiff was entitled to judgment “restraining the defendants, and each of them, from using the name of ‘The Tuerk Water-Meter Company,’ or any other substantial imitation of the name ‘The Tuerk Water-Motor Company,’ by which the plaintiff is generally known, or from printing, publishing, issuing, or circulating any of the cuts, pictures, prints, or printed matter used by the plaintiff in its catalogues or circulars, prior to the formation of the defendants’ firm, or any substantial imitations thereof.” Newman v. Alvord, 51 N. Y. 189; Manufacturing Co. v. Garner, 54 How. Prac. 298; Gebbie v. Stitt, 82 Hun, 93, 31 N. Y. Supp. 102; De Long v. Hook & Eye Co., 10 Misc. Rep. 577, 32 N. Y. Supp. 203; Higgins Co. v. Higgins Soap Co., 144 N. Y. 463, 39 N. E. 490.

We are of the opinion that the omission of the referee to find damages against the defendants furnishes no reason for withholding an injunction. The same conclusion was stated in Manufacturing Co. v. Garner, supra, near the close of the opinion. Nor do we see any error available to the appellants in the refusals of the referee to find in accordance with certain requests made by the defendants. Crim v. Starkweather, 136 N. Y. 635, 32 N. E. 701; Galle v. Tode (Sup.) 26 N. Y. Supp. 638.

Several exceptions were taken during the trial to the referee’s admission and rejection of evidence. After careful attention to them, we have discovered, none which require us, under the rule applicable in equity cases, to interfere with the conclusion reached by the referee. Galle v. Tode, 74 Hun, 542, 26 N. Y. Supp. 633. The action was on the equity side of the court, and in Donovan v. Clark, 138 N. Y. 631, 33 N. E. 1066, it was said:

> *387“In sucli cases exceptions to evidence should be disregarded, unless the appellant can show that injustice has been done upon the whole case, or that the ruling complained of may have affected the result.”

The foregoing views lead to an affirmance.

Judgment affirmed, with costs. All concur.