Warner Bros. v. Wiener

214 F. 30, 130 C.C.A. 424, 1914 U.S. App. LEXIS 1099

• Court: Court of Appeals for the Second Circuit
• Decided: April 28, 1914
• Docket: No. 271
• Status: Published

Opinions

COXE, Circuit Judge.

[1,2] The complainant moved in the District Court for a preliminary injunction restraining-the-defendant from using his name in connection with the sale of corsets which the complainant contends infringes its registered trade-mark. This trade-mark consists of the name “Warner’s” printed in heavy black script. The defendant printed his name in similar black script in such a way that a purchaser might easily mistake it for that of the complainant. Both parties are engaged in selling corsets. The District Court enjoined the defendant from using his name printed in script and said in its opinion that the defendant must not use script “but must use plain type not similar to the script used by Warner.”

This is exactly what the defendant has done. He now prints on his boxes in heavy black letters his name WIENER. It is this use of his name which the complainant seeks to enjoin. We think there is no merit in this contention. The defendant’s name is Wiener, he is a corset maker, he has a right to make corsets and to use his own name in the business. The name as now used by him is as different from the name “Warner’s,” as it appears in the trade-mark, as it well can be. Assuming that he has a right to do business in his own name he could hardly differentiate the names more clearly. His name is not printed in script but in heavy black print and the only resemblance between the two names is the inherent similarity between the names Warner and Wiener. There is, therefore, no infringement of the trade-mark. Of course, unfair competition cannot be predicated of the use of a name which the defendant has a perfect right to use.

The order is affirmed.