Benjamin Moore & Co. v. Auwell

Second Circuit

Benjamin Moore & Co. v. Auwell

178 F. 543, 102 C.C.A. 53, 1910 U.S. App. LEXIS 4532

CourtCourt of Appeals for the Second Circuit

DecidedApril 18, 1910

DocketNo. 171

StatusPublished

Cited by4 cases

This text of 178 F. 543 (Benjamin Moore & Co. v. Auwell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benjamin Moore & Co. v. Auwell, 178 F. 543, 102 C.C.A. 53, 1910 U.S. App. LEXIS 4532 (2d Cir. 1910).

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Opinions

WARD,, Circuit Judge.

The bill alleges infringement of a registered trade-mark and also unfair competition. The trade-mark is a fouled anchor with the words “Muresco” and “Moore’s Muresco” in connection with it. There is absolutely no imitation of this trade-mark. The only ground of unfair competition is the use of the word “Murafres-co”; there being no effort to make the defendant’s packages resemble the complainant’s or to pass off his goods as theirs. The name “Mura-fresco” was quite naturally arrived at, by shortening the older trade-name “Muralofresco,” by other parties before the defendant had anything to do with the article, and had been used commercially for three or four years before this suit wa¡s brought. There is no proof that the public is deceived, the evidence being to the contrary. The resemblance between the words is so great as to make the case a close one, and evidence of bad faith on the defendant’s part or of confusion on the part of the public would incline us to enjoin its use. Consideration of all the facts, however, causes us to concur with the trial judge.

The judgment is affirmed.

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WARD,, Circuit Judge.

The bill alleges infringement of a registered trade-mark and also unfair competition. The trade-mark is a fouled anchor with the words “Muresco” and “Moore’s Muresco” in connection with it. There is absolutely no imitation of this trade-mark. The only ground of unfair competition is the use of the word “Murafres-co”; there being no effort to make the defendant’s packages resemble the complainant’s or to pass off his goods as theirs. The name “Mura-fresco” was quite naturally arrived at, by shortening the older trade-name “Muralofresco,” by other parties before the defendant had anything to do with the article, and had been used commercially for three or four years before this suit wa¡s brought. There is no proof that the public is deceived, the evidence being to the contrary. The resemblance between the words is so great as to make the case a close one, and evidence of bad faith on the defendant’s part or of confusion on the part of the public would incline us to enjoin its use. Consideration of all the facts, however, causes us to concur with the trial judge.

The judgment is affirmed.

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Bluebook (online)

178 F. 543, 102 C.C.A. 53, 1910 U.S. App. LEXIS 4532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-moore-co-v-auwell-ca2-1910.

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