Stewart v. Smithson

1 Hilt. 119

• Court: New York Court of Common Pleas
• Decided: May 15, 1856
• Status: Published

Opinion

Beady, J.

The defendants, in the amendments which they asked leave to make to their answer at special term, have not alleged sufficient facts to constitute a defence. The mere fact that names used on a trade-mark are fictitious would not authorize the use of it by strangers. The question to be determined in these cases is, whether the mark used by the party claiming the protection of the court is owned by him, without regard to its form, which such party has a right to design according to his judgment or his faney. If the defendants had alleged that the firm names used on the marks never existed, that would, for the reason stated, furnish no justification for their use of it, and it would not have presented a defence in this action. They have not done so, however, nor have they alleged that firms, whose names do appear on the mark, did exist, and that the use of their names by the plaintiffs was wholly unauthorized. If they had alleged this, then, in the application of the maxim potior est conditio defendentis, the courts might relieve them from any disturbance by the plaintiffs. The amendments offered do not contain anything meritorious, as suggested by Judge Woodruff, and do not contain a strictly legal answer to the plaintiffs’ claim. This is a sufficient reason why the favor of the court should not be extended to them, and the order of the special term must be affirmed.