Johnson v. Hitchcock

3 N.Y.S. 680, 1888 N.Y. Misc. LEXIS 934

• Court: New York Supreme Court
• Decided: November 12, 1888
• Status: Published

Opinion

Patterson, J.

Strictly speaking, the plaintiff cannot maintain this action on the theory of trade-mark proprietorship, but the right he seeks to enforce will be protected, on the principle upon which courts of equity interfere to prevent illegitimate competition in trade or business by one seeking to acquire to himself the custom of another person by an unfair or fraudulent use of those signs, symbols, or devices which are used by, and are known to be used by, that other person. The defendant has just as much right to use in his advertisements the picture of a flag as the plaintiff has, but he has not the right to imitate those peculiar anr} fanciful arrangements of details which indicate to the public the plaintiffs’ special business sign. In this case the plaintiff, several years ago, added to his general business of real-estate auctioneer that method of selling suburban property called in the evidence the “installment plan, ” and he has always used in his business, and for several years has had printed with his very extended newspaper advertisements, a representation of a flag,- with stars studding the upper and lower borders in a very effective and striking way. This he has used in combination with other and different devices, none of which has the defendant undertaken to imitate, but the permanent and conspicuous feature is the arrangement of stars on the borders or margins of the flag. The defendant is also a real-estate auctioneer who sells country and suburban property in the same peculiar way, and he has recently advertised his sales in newspapers, with, as part of his advertisements, a representation of a flag, not only calculated to but which have in many instances deceived people, who have believed the defendant’s advertisements to be the plaintiff’s, the defendant’s flag imitating the plaintiff’s in the arrangement of stars on the upper and lower borders. There is no doubt of the effect, and there can be but little of the cause, of the defendant’s adoption of this feature of his flag, and heading his newspaper advertisements with a print or cut representing it. I think there should be a decree for an injunction against the use of a flag imitating the plaintiff’s in the arrangement and use of stars on the upper and lower hems or borders, with taxable costs, but further than this the decree should not go.