The record-union., 1892-12-31
MARKS WINS.
Judge Johnson Rules That His Build
ing May Stand.
He Had Right TO Initiate the Vein
stock-Lubin Structure, the
Court Says.

! Superior Judge Johnson rendered de-
cision yesterday in the case of Weinstock,
Lubin d Co. VS.. II. Marks.
4 The suit was for heavy damages alleged
to have been sustained through Marks
having erected building which appeared
to be an addition to the plaintiffs build
ing, and which the plaintiffs claimed had
attracted patronage which was intended
for them. The courts decision was rem
dered on the defendants motion to strike
out portions of the complaint, but it prac-
tically disposes of the suit.
Judge johnson finds, with reference to
Marks building, that the plaintiffs struc-
ture was erected in 1891. SIT was of a
peculiar style and architecture" contin-
ues the court, especially upon the ground
floor, containing arcades or covered
walks, it being alleged at that time that it
was the only building of that style on the
coast. Afterwards, i'll 1892, the defendant
erected at his place of business adjoining
building having for its ground floor
style OF architecture similar in every re-
spect to the plaintiffs, so much so that
persons could be easily deceived thereby
that they were entering plaintiffs place
OF business, when in reality they were
going into that of defendant; that many
persons were deceived thereby. and went
into and traded with defendant, suppos-
ing at the time they were in the store of
plaintiffs.
The plaintiffs seek to have defendant
remove his building" continues the
court, 'or that part thereof which is sim
liar IN appearance to plaintiffs, or that he
be compelled to place such name at his
place OF business as will distinguish it
from nlaintitfaj I
far as the complaint shows, neither
plaintiffs nor defendant have any name
or sign at their place of business, and [
take 1t that neither of them have. Upon
this question counsel have cited large
number of cases, nearly all of which l
have examined since the case has been
submitted. From such Investigation |
ind that courts OF equity have been zeal
Gus III guarding the rights of persons to
trade marks, and of late years cases Of
that KIND have increased rapidly. They
all concur in protecting the name, sign or
symbol, letter, figure, mark or device
when person may adopt in the conduct
OF his business, and he has always been
FULLY protected i'll all the rights pertain
ing to the same. But no case has been
presented to me similar to the one at bar.
All the cases mentioned are in trade
mark cases, where either a name, sign,
letter, figure. mark, symbol or device of
some kind is the subject of controversy"
The court holds that none of the cases
cited and examined by him are broad
enough to extend to building. "To per-
init such thing" he says, would GER
tainly be against public policy. II would
greatly enhance the interests of the city if
other property beside the defend
ant would see fit to initiate the example of
! plaintiffs, and erect buildings as hand
some and inviting in appearance. To
! prevent them would be detrimental to
the public at large, and prevent a grow
ing community from making substantial
| improvements"
In conclusion, the court grants the mo-
ton to strike out paragraphs seven and
ten regarding the alleged frauds and de-
ceits practiced by the defendant in secur-
ing trade and custom claimed to belong
to the plaintiffs. but permitted para
graphs two, three, five and six to stand
This leaves the bare question of fact as to
whether damages should be awarded or
not.