I am unable to concur in the affirmance of this judgment because I cannot find any substantial distinction between this case and the leading case of Singer Mfg. Co. v. June Mfg. Co. (163 U. S. 169) which applied to a similar state of facts a rule which has been generally accepted by the courts and which if applied to the present case requires a reversal of the judgment.
The appellant frankly admits that the injector which it sells is what is .termed in the- brief a “ Chinese ” copy of the injector manufactured and sold by the plaintiff. That appellant has a right to imitate and even copy plaintiff’s machine is not questioned. What is questioned and what the judgment appealed from denies to the appellant is the right to use the word “Monitor” upon the copies so made. The sole basis for the judgment is the right and duty of the court to restrain and prevent unfair competition in trade. It is apparent from the testimony that the use of the word “ Monitor ” as used by plaintiff was coincident or very nearly so with the acquisition of the so-called Wohler’s patent, and that, although that patent may not have been fundamental or such as protected every part of plaintiff’s injector, yet that it did cover and protect one of its integral parts so that the injector could not have been copied without necessarily infringing that patent.. What the Supreme Court of the United States characterizes as the “pivotal” questions of fact upon which it based its decision in the Singer case were: '
“1st. That'the Singer sewing machines were covered by ¡intents which gave to the manufacturers a substantial monopoly; that in consequence of the enjoyment of this monopoly by the makers the name ‘ Singer ’ came to indicate in its primary sense, to the public, the class and type of machines made by the Singer Company or corporations, and thus this name constituted th,eir. generic description ; that also as this, name applied to and described'macliines made alone by the Singer firm or corporations the use also came in a secondary sense to convey to the public mind the machines made by the firm or corporations.
“ 2d. That the word ‘ Singer ’ was also voluntarily applied by the Singer firm or companies as a designation of" the general type of machines made by them, with the intention that such machines *517should be accepted by the public under that name; thus the course of the business and the purposes for which the name •' Singer ’ was used brought about results identical with those which sprang from the existence of the monopoly, hence that name became not only the description of the machines, but also, in a subordinate sense, the indication of the source of manufacture.”
With the substitution of the word “Monitor” for “Singer,”-and , “ Injector ” for “ Sewing Machines,” and “ Nathan Manufacturing Company ” for “ Singer firm or companies,” the clauses above quoted would, as I read the evidence, exactly state the pivotal facts upon which the present case turns. The Singer Company manufactured sewing machines adapted to various purposes, to which it added descriptive words to the generic word “ Singer.” In the same way the plaintiff has manufactured injectors of the same general type, but of slightly different pattern adapted to different uses, to indicate which it has added descriptive or distinguishing words to the generic word “Monitor.” I find myself quite unable to follow the course of reasoning which leads to the conclusion that the use of an arbitrary word, such as “ Monitor,” points more surely to the source of manufacture than does the use of the surname of the individual who originally manufactured the article to which the name is applied. If there be any such distinction, it would seem that the nanie of the original manufacturer would be more likely to be understood as indicating the source of manufacture. It is not always easy to determine what is and wliat is not unfair competition. Our Court of -Appeals has said that: “ The true test, we think, is whether the resemblance is such that it is calculated to deceive, and does in fact deceive the ordinary buyer making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates.” (Fischer v. Blank, 138 N. Y. 244, 252.) What was said in Westcott Chuck Co. v. Oneida Nat. Chuck Co. (122 App. Div. 260) is equally applicable to the present case, “ as to the method of stamping, it is somewhat difficult to see how with the plaintiff’s name stamped upon its product, and the defendant’s name stamped upon the product sold by it, any confusion as to the source or origin of the respective products could arise in the mind of any purchaser who cared to inform himself as to that question. These chucks are used almost exclusively by machín*518ists who have technical knowledge, and who look to the construction of the chuck rather than to its form or any, particular marks thereupon. Such customers are much less likely to be misled by form than in ordinary cases where articles are purchased by those who buy for no mechanical purpose, ór who have no special knowledge to enable them to discriminate between articles made by different makers.” '
In the Singer case and in Ludlow Valve Mfg. Co. v. Pittsburgh Mfg. Co. (166 Fed. Rep. 26) the defendants, were permitted to manufacture and-sell copies of the complainant’s machines, "provided the articles sold were so marked as to plainly and unmistakably indicate that they were made by the defendants. The injectors sold by appellants are so marked, and I do not understand that they are objected to on this score. I think, however, that the catalogue of separate parts going to make up the “Monitor” injector, as used and issued by appellant, does furnish, in the form in which it is printed, an instance of unfair competition, and ivas properly enjoined. In other respects I think that the judgment cannot be sustained, and should be reversed and a new trial granted.
Laughlin, J., concurred.
judgment affirmed, with costs.