Romanoff Cigarette Co. v. Vuccino

118 N.Y.S. 535

Opinion

HENDRICK, J.

Plaintiff asks for an injunction pendente lite restraining defendant from imitating its cigarette packages. Defendant files a batch of affidavits from houses like Delmonico’s and the Waldorf to the effect that they deal in the products of both parties hereto, and none of them have ever been deceived into accepting ■one for the other.' Some of plaintiff’s affidavits are from smokers,' who have purchased defendant’s goods, supposing them to be plaintiff’s. Plaintiff’s brands are “Romanoff” and “Salambo.” Defendant’s are “Ivanoff” and “Salome.” The names of the varieties given to plaintiff’s goods have been practically duplicated by defendant. The "typography of plaintiff’s price lists have been imitated by defendant. On one of plaintiff’s packages the printing has been nearly covered -over by a label placed over it transversely. This has been so closely imitated by defendant that the difference can be detected- only by close scrutiny. But in other respects it can hardly be said that there is any danger of diversion of trade through similarity of package.

In the multitude of cigarettes placed on the market, marked péculiarity of package is hardly attainable. Neither of those under consideration is original, as both are duplicates of one used by Café Mártin. The marks are somewhat similar. Both are marked “Russian Cigarettes,” and contain some words in Russian characters. Both' contain an embossed eagle, but in different colors. Defendant, .Vuccino, designed both sets of packages; but neither has been used during a long period of time. Plaintiff has no proprietary interest in the Russian characters, nor in the form or color of the. packages, nor in the words “Russian Cigarettes.” In some of the imitations, like the transverse label and the price lists, defendant may be acting beyond his rights;. but I hardly think plaintiff is entitled to an injunction in the terms prayed for.

The motion is denied, if defendant give to plaintiff an undertaking to answer a judgment in such sum as may be fixed on the settlement of the order; otherwise, the motion is granted, but limited to the points above indicated.