Haslinghuis v. Hencken, Haaren & Co.

143 N.Y.S. 1094

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 7, 1913
• Status: Published

Opinion

PAGE, J.

This action was brought to recover the penalty prescribed for a violation of section 367 of the General Business Law, in refilling a bottle upon which was an alleged filed trade-mark. The plaintiffs proved that the trade-mark was filed in the office of the Secretary of State and in the office of the clerk of New York county, and the publication thereof in the New York Law Journal for the required period.

[1,2] Section 367, however, provides that in New York and Kings counties the publication shall be "daily in two newspapers.” This, being a penal statute, must be strictly construed, and plaintiff must show that he has complied with each and every requirement thereof in order to claim its protection and enable him to recover the penalty therein provided. This case is distinguishable from the case of Mackie & Coy, Distillers, Limited, v. Hencken, Haaren & Co., Inc., decided at this term (no opinion filed). In that case the trade-mark was filed in the Queens county clerk’s office, in which county the statute requires the publication in one newspaper.

Judgment reversed, and new trial granted, with costs to appellants to abide the event. All concur.