Carpenter, J.
The office of a trade-mark is to designate the true origin or ownership of the article or fabric to which it is affixed. When any mark, symbol or device is used merely to indicate the name, quality, style or size of an article it cannot be protected as a trade-mark.
The object or purpose of the law in protecting trade-marks as property, is two fold; first, to secure to him who has been instrumental in bringing into market a superior article of merchandise, the fruit of his industry and skill; second, to protect the community from imposition, and furnish some guaranty that an article, purchased as the manufacture of one who has appropriated to his own use a certain name, [414]*414symbol or device as a trade-mark, is genuine. Consequently the violation of property in trade-marks works a two fold injury ; the appropriator suffers, in failing to receive that remuneration for his labors to which he is justly entitled, and the public in being deceived, and induced to purchase articles manufactured by one man, under the belief that they are the production of another.
It must not be inferred, however, that an injury to the purchaser, and an injury to the proprietor of a trade-mark, must concur in any given case in- order to maintain an action ; as either, of itself, is sufficient to entitle the party injured to his legal remedy. Thus an imitator of a trade-mark may not defend, as against the true owner, by showing that the article sold by him is as good as the representation implied by the use of the trade-mark; while such fact may, perhaps, be shown in defence, or at least in mitigation of damages, in an action on the case by the purchasers. And on the other hand, in the latter class of actions, the injury to the original appropriator forms no part of the plaintiff’s case.
A leading case on this subject is The Amoskeag Manufacturing Co. v. Spear, 2 Sandf. Sup. Ct. R., 599. Mr. Upton in his work on trade-marks, page 136, upon a careful examination of that case, has deduced from it certain principles, which seem to have been sanctioned and affirmed by later decisions ; and which, with the exception perhaps of the last, may now be regarded as the settled law of this country. I quote only those which seem to have more immediate reference to the case now under consideration; and will then briefly apply them to the facts of the case.
“First — That a trade-mark, adopted by a manufacturer or merchant for his goods, to be clothed with the attributes of property, entitling the appropriator to protection in its exclusive use, must, by word, letter, sign, figure or symbol, designate the true origin or ownership of the goods.
. “Second — That where a trade-mark is violated, the essence of the wrong done consists in the sale of the goods, of one manufacturer as and for the goods of another, and therefore that such violation can only be predicated of a copy or imita[415]*415tion of a trade-mark or those portions of a trade-mark which truly designate the origin or ownership of the goods.
“Third — That a similarity between two trade-marks, used by different manufacturers for their goods, although of such a character as to induce a belief in the mind of the public that they belong to and designate the goods of the same manufacturer or trader, is not, of itself, sufficient ground" for a prohibition of the use of such trade-mark by him who did not first adopt it. That similarity, to entitle the originator to the protection of the law, must be such as to amount to a false representation, not alone that the two articles have the same origin, but that the goods to which the simulated mark is attached are the manufacture of him who first appropriated the trade-mark.” * * * * * * *
“Eifth — That, a violation of a trade-mark consisting of a false declaration, by a copy or imitation of those parts of the trade-mark imitated which indicate the true origin or manufacture of the goods — it is not essential to the interposition of judicial restraint, that the imitation should be exact or perfect. Though a limited and partial imitation, containing variations that a comparison with the original would instantly disclose, it may yet be manifest that a resemblance exists, which was designed to mislead, and which has actually misled, the public, or probably, or even possibly, may do so, in that particular which constitutes the wrong.
“Sixth — That the name and address of the manufacturer, used by him as a trade-mark, may have added to, and connected with it, some peculiar device, vignette, emblem, symbols, forms or figures, adopted as auxiliaries to the name and address, in declaring the true origin and ownership of the merchandise, and a wrongful violation of such a trademark may be accomplished, even though the name of the original manufacturer be omitted, and that of the imitator be substituted, by such an imitation of the peculiar device, vignette, emblem, symbol, form, color or figure alone, as indicates a design and is calculated to mislead and deceive the public as to the true origin and ownership of the goods.”
1. Both parties seem to regard the use of numbers as giv[416]*416ing rise to the most important and most material question in the cause. The petitioners rely upon them as the most prominent, valuable and distinctive feature in their trade-marks. The respondents claim that, if in any case numbers can be legally appropriated as trade-marks, they were not so appropriated in this case; and that, so far as they tend to indicate ownership, it is only so by an association of ideas, and by giving to them a meaning which they were not originally designed to have. If this be so, or if the numbers were used solely to indicate the different patterns, styles or sizes, it is clear from the view we have taken of the law, that the respondents ought not to be restrained from their use. Whether in any case numbers alone may be legitimately appropriated as trade-marks, is a question not necessarily involved in the case. It may be difficult to give to bare numbers the effect of indicating origin or ownership ; and it may be still more difficult to show that they were originally designed for that purpose ; but if it be once ‘shown that that was the original design, and that they have had that effect, it may not be easy to assign a reason why they should not receive the same protection, as trade marts, as any other symbol or device. But in this case the numbers were associated with the name of the petitioner, and the • form, color and general arrangement of the labels; and, by virtue of that connection, form an important part of the trade-mark itself. By a reference to the facts found it will appear that Luther Boardman, one of the petitioners, “ adopted the several labels, of the size, form and colors stated, and the numbers printed thereon, for the purpose of distinguishing the spoons of his m.anufaeture from all other britannia spoons sold in market. ” .And also, “ that the labels described in the petition, in connection with the name ‘L. Boardman,’ .and especially the numbers thereon, constituted the only trade-marks under which the petitioners introduced their spoons into market, that under these labels and numbers their spoons had become generally known in market and had obtained a good reputation, and there had grown up a large demand for the petitioners’ spoons, that those spoons were known by their respective numbers, [417]*417and were generally ordered, bought and sold by the numbers on the labels.”
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Carpenter, J.
The office of a trade-mark is to designate the true origin or ownership of the article or fabric to which it is affixed. When any mark, symbol or device is used merely to indicate the name, quality, style or size of an article it cannot be protected as a trade-mark.
The object or purpose of the law in protecting trade-marks as property, is two fold; first, to secure to him who has been instrumental in bringing into market a superior article of merchandise, the fruit of his industry and skill; second, to protect the community from imposition, and furnish some guaranty that an article, purchased as the manufacture of one who has appropriated to his own use a certain name, [414]*414symbol or device as a trade-mark, is genuine. Consequently the violation of property in trade-marks works a two fold injury ; the appropriator suffers, in failing to receive that remuneration for his labors to which he is justly entitled, and the public in being deceived, and induced to purchase articles manufactured by one man, under the belief that they are the production of another.
It must not be inferred, however, that an injury to the purchaser, and an injury to the proprietor of a trade-mark, must concur in any given case in- order to maintain an action ; as either, of itself, is sufficient to entitle the party injured to his legal remedy. Thus an imitator of a trade-mark may not defend, as against the true owner, by showing that the article sold by him is as good as the representation implied by the use of the trade-mark; while such fact may, perhaps, be shown in defence, or at least in mitigation of damages, in an action on the case by the purchasers. And on the other hand, in the latter class of actions, the injury to the original appropriator forms no part of the plaintiff’s case.
A leading case on this subject is The Amoskeag Manufacturing Co. v. Spear, 2 Sandf. Sup. Ct. R., 599. Mr. Upton in his work on trade-marks, page 136, upon a careful examination of that case, has deduced from it certain principles, which seem to have been sanctioned and affirmed by later decisions ; and which, with the exception perhaps of the last, may now be regarded as the settled law of this country. I quote only those which seem to have more immediate reference to the case now under consideration; and will then briefly apply them to the facts of the case.
“First — That a trade-mark, adopted by a manufacturer or merchant for his goods, to be clothed with the attributes of property, entitling the appropriator to protection in its exclusive use, must, by word, letter, sign, figure or symbol, designate the true origin or ownership of the goods.
. “Second — That where a trade-mark is violated, the essence of the wrong done consists in the sale of the goods, of one manufacturer as and for the goods of another, and therefore that such violation can only be predicated of a copy or imita[415]*415tion of a trade-mark or those portions of a trade-mark which truly designate the origin or ownership of the goods.
“Third — That a similarity between two trade-marks, used by different manufacturers for their goods, although of such a character as to induce a belief in the mind of the public that they belong to and designate the goods of the same manufacturer or trader, is not, of itself, sufficient ground" for a prohibition of the use of such trade-mark by him who did not first adopt it. That similarity, to entitle the originator to the protection of the law, must be such as to amount to a false representation, not alone that the two articles have the same origin, but that the goods to which the simulated mark is attached are the manufacture of him who first appropriated the trade-mark.” * * * * * * *
“Eifth — That, a violation of a trade-mark consisting of a false declaration, by a copy or imitation of those parts of the trade-mark imitated which indicate the true origin or manufacture of the goods — it is not essential to the interposition of judicial restraint, that the imitation should be exact or perfect. Though a limited and partial imitation, containing variations that a comparison with the original would instantly disclose, it may yet be manifest that a resemblance exists, which was designed to mislead, and which has actually misled, the public, or probably, or even possibly, may do so, in that particular which constitutes the wrong.
“Sixth — That the name and address of the manufacturer, used by him as a trade-mark, may have added to, and connected with it, some peculiar device, vignette, emblem, symbols, forms or figures, adopted as auxiliaries to the name and address, in declaring the true origin and ownership of the merchandise, and a wrongful violation of such a trademark may be accomplished, even though the name of the original manufacturer be omitted, and that of the imitator be substituted, by such an imitation of the peculiar device, vignette, emblem, symbol, form, color or figure alone, as indicates a design and is calculated to mislead and deceive the public as to the true origin and ownership of the goods.”
1. Both parties seem to regard the use of numbers as giv[416]*416ing rise to the most important and most material question in the cause. The petitioners rely upon them as the most prominent, valuable and distinctive feature in their trade-marks. The respondents claim that, if in any case numbers can be legally appropriated as trade-marks, they were not so appropriated in this case; and that, so far as they tend to indicate ownership, it is only so by an association of ideas, and by giving to them a meaning which they were not originally designed to have. If this be so, or if the numbers were used solely to indicate the different patterns, styles or sizes, it is clear from the view we have taken of the law, that the respondents ought not to be restrained from their use. Whether in any case numbers alone may be legitimately appropriated as trade-marks, is a question not necessarily involved in the case. It may be difficult to give to bare numbers the effect of indicating origin or ownership ; and it may be still more difficult to show that they were originally designed for that purpose ; but if it be once ‘shown that that was the original design, and that they have had that effect, it may not be easy to assign a reason why they should not receive the same protection, as trade marts, as any other symbol or device. But in this case the numbers were associated with the name of the petitioner, and the • form, color and general arrangement of the labels; and, by virtue of that connection, form an important part of the trade-mark itself. By a reference to the facts found it will appear that Luther Boardman, one of the petitioners, “ adopted the several labels, of the size, form and colors stated, and the numbers printed thereon, for the purpose of distinguishing the spoons of his m.anufaeture from all other britannia spoons sold in market. ” .And also, “ that the labels described in the petition, in connection with the name ‘L. Boardman,’ .and especially the numbers thereon, constituted the only trade-marks under which the petitioners introduced their spoons into market, that under these labels and numbers their spoons had become generally known in market and had obtained a good reputation, and there had grown up a large demand for the petitioners’ spoons, that those spoons were known by their respective numbers, [417]*417and were generally ordered, bought and sold by the numbers on the labels.”
From this finding we entertain no doubt that the labels thus arranged, adopted and used, constituted legal trademarks, and are entitled to protection.
2. Have the respondents violated the petitioners’ rights by an imitation of their trade-marks ? It seems that the respondents manufactured “ spoons similar in character to those made by the petitioners, though differing somewhat in style or pattern, and prepared labels resembling those of the petitioners, and adopted the same numbers as had been adopted by the petitioners, adapting said numbers to similar kinds of spoons.”
The presumption of a designed imitation, arising from the similarity of the spoons, the resemblance of the labels, and the identity of the numbers, would be very strong if all these circumstances were found to exist in reference to only one kind ; but when the case finds, as it does, that they do exist in respect to several different kinds, the presumption is vastly strengthened. It further appears that the similarity of the labels was “ so close an imitation that an unwary trader might be deceived, but no one reading the label would bo deceived thereby. That the respondents adopted the labels, and numbers, as set forth in the petition, for the purpose of aiding the introduction of their spoons into.market, <fcc.”
It is true that the respondents put their own name on the labels used by them, in place of that of the petitioners; but that is not sufficient to destroy the effect of the imitation in other respects; especially in respect to the numbers. They had been in the habit of selling Boardman’s spoons, and of selling them by their numbers. And when customers ordered spoons of a certain number of the respondents, they expected to receive Boardman’s spoons. On receiving them the most prominent feature of the label, and the one most likely to attract attention, would be the number. That being right, and the labels generally resembling the petitioners’, the name would hardly be likely to attract attention, and if it did, it is by no means certain that they would be parties[418]*418lar to observe that the name indicated the makers of the article rather than dealers therein. The importance attached to these numbers is further shown by the fact that since the temporary injunction the respondents have used the same numbers with a cypher prefixed.
On the whole we are satisfied that, although the name of the imitator was substituted for that of the original proprietors, and that the imitation in other respects may not be exact, a resemblance exists, which was designed to mislead; and which, under the circumstances, was well calculated and likely to produce that result.
8. Have the petitioners suffered damage ? On this point there is no room for doubt. The finding of the committee is explicit, “ that said respondents have sold large quantities of their spoons so put up in place of spoons manufactured by the petitioners, as alleged in the petition.” It is also apparent from what has already been said that the petitioners are in danger of still further loss unless protected by an injunction. The circumstance that the respondents now prefix a cypher to the numbers would hardly vary the result. Their motive is apparent. They may succeed in reaping some advantage from the numbers as thus used, but it is manifest that it will be at the expense of the petitioners.
We advise judgment for the petitioners.
In this opinion the other judges concurred.