Benjamin Moore & Co. v. Auwell

U.S. Circuit Court for the District of Eastern New York

Benjamin Moore & Co. v. Auwell

158 F. 462, 1908 U.S. App. LEXIS 4958

CourtU.S. Circuit Court for the District of Eastern New York

DecidedJanuary 3, 1908

StatusPublished

This text of 158 F. 462 (Benjamin Moore & Co. v. Auwell) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Eastern New York 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, 158 F. 462, 1908 U.S. App. LEXIS 4958 (circtedny 1908).

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Opinion

CHATFIERD, District Judge.

This motion is for a preliminary injunction against the defendant, which is putting upon the market a wall finishing product called “Murafresco.” The complainant has for some time sold, and has built up a considerable trade in a product which it has named “Muresco.” This name of “Muresco” is not only well known, but is a component part of complainant’s trade-mark, which could have been used with reference to all of the complainant’s products. The complainant, however, has not sold its wares generally under the guise of Muresco products, but has made the word known to the trade generally as a cognomen for the wall finishing article alone. Affidavits claiming a prior use of the word “Murafresco” in the trade for a similar product, and a somewhat general use of combinations of the stem of the Latin word “murus,” with the various terminations, have been submitted by defendant. The rule that no preliminary injunction will be granted “except when the papers present a clear case” has often been stated, and is set forth in a case much like the present in principle, viz., Star Co. v. Colver Pub. House (C. C.) 141 Fed. 129. No adjudication in favor of the complainant has been had in any court, and no decision upon a motion like the present can be made, without in effect deciding the merits of the action upon affidavits, rather than upon the testimony which shall be hereafter taken upon the trial of the cause.

The motion for a preliminary injunction, therefore, should be denied.

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CHATFIERD, District Judge.

This motion is for a preliminary injunction against the defendant, which is putting upon the market a wall finishing product called “Murafresco.” The complainant has for some time sold, and has built up a considerable trade in a product which it has named “Muresco.” This name of “Muresco” is not only well known, but is a component part of complainant’s trade-mark, which could have been used with reference to all of the complainant’s products. The complainant, however, has not sold its wares generally under the guise of Muresco products, but has made the word known to the trade generally as a cognomen for the wall finishing article alone. Affidavits claiming a prior use of the word “Murafresco” in the trade for a similar product, and a somewhat general use of combinations of the stem of the Latin word “murus,” with the various terminations, have been submitted by defendant. The rule that no preliminary injunction will be granted “except when the papers present a clear case” has often been stated, and is set forth in a case much like the present in principle, viz., Star Co. v. Colver Pub. House (C. C.) 141 Fed. 129. No adjudication in favor of the complainant has been had in any court, and no decision upon a motion like the present can be made, without in effect deciding the merits of the action upon affidavits, rather than upon the testimony which shall be hereafter taken upon the trial of the cause.

The motion for a preliminary injunction, therefore, should be denied.

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158 F. 462, 1908 U.S. App. LEXIS 4958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-moore-co-v-auwell-circtedny-1908.

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