Fleischmann v. Newman

2 N.Y.S. 608, 16 N.Y. St. Rep. 794, 1888 N.Y. Misc. LEXIS 685

Opinion

Ingraham, J.

On the facts presented in this case, I do not think plaintiff is entitled to an injunction. The only words that are on both labels are “ Comr pressed Yeast,” and “Yone genuine without our signature.” These words could not be made the subject of a trade-mark. Compressed yeast indicates the character and composition of the article, and cannot be appropriated by any one to his exclusive use. Caswell v. Davis, 58 N. Y. 233. Yor can plaintiff appropriate'the form of a package so as to exclude others from using the same character of package. Enoch Morgan's Sons Co. v. Troxell, 89 N. Y. 297. It appears that the general form of this label has been in general use by manufacturers of compressed yeast before and since it was first used by the plaintiff. Complaint dismissed, with costs.

Footnotes

1

See People v. Wilson, 16 N. E. Rep. 540; People v. Deacons, Id. 676; People v. Hawkins, 17 N. E. Rep. 371; and People v. Lyons, Id. 391.