The findings of the judge at special term in the defendants’ favor on all the questions raised, in this case except one, leaves us nothing to examine except in regard to that one point, on which he has adjudged that the,plaintiff is entitled to have the injunction sustained.
*481The action was brought to protect the plaintiff in the use of certain trade marks which he claimed as his own, connected with his manufacture of steel pens. It is not pretended that the defendants used the plaintiff's name, and the court below decided that the labels, boxes and packages, although similar to the plaintiff’s, were in no way violations of the plaintiff's rights. The defendants upon their boxes placed their own names, and the evidence showed that for more than twenty years the manufacturers in England have been in the habit of putting up pens manufactured by them for different persons with the name of such person on the boxes, and all of them containing on the face of the boxes “Ho. 303,” It is for this number that the plaintiff claimed a right as a trade mark, and the injunction was made perpetual as to the use of that number. $To claim is made that this number in any way designates the plaintiff, or any thing'of his manufacture, but he claims to. have a right of property in it as a trade mark because he first applied its use to pens manufactured by him. The only evidence on this point is that he first sold the pens in this country with the number on the boxes ; but the evidence shows that prior to that time, the number was used on boxes of various dealers in England. The defendants’ witnesses also testify that this number is not used to designate any particular 'manufacture, but the quality or degree of fineness of the pen, and that it is not peculiar to any manufacture of the plaintiff.
The question involved in this case was directly examined and passed upon by Duer, J. in 1849, in The Amoskeag M. Co. v. Spear, (2 Sandf. 599.) In that case the plaintiffs claimed the letters A. O. A. stamped upon their labels on tickings manufactured by them. It was not denied but that the plaintiffs first used these letters, and. they gave evidence that the letters A. and 0. were the initials of their name, Amoskeag & Company, and the other A. was to describe the quality. In that case Duer, J. held that the plaintiffs were *482not- entitled to the exclusive use of any letters, numbers, or other marks intended to designate quality or merely a substitute therefor, and dissolved the injunction as to those letters.
In Stokes v. Landgraff, (17 Barb. 608,) a similar question was decided in the 7th district. In that case, the plaintiff, who was a manufacturer of glass, caused the boxes to be . branded with the words “ Galen, Lake, Cylinder, Wayne or New York,” which had been used by his predecessor in business to distinguish the different qualities of glass which he sold. These marks were imitated and copied by the defendants. Strong, J. held that these marks or words were not used by the plaintiff to distinguish his glass, or glass of his manufacture. He says :■ “ Neither of the words, in its ordinary sense, expresses the manufacture, or the manufactory, or where the manufactory is,” and the injunction in that case was vacated.
In Corwin v. Daley, (7 Bosw. 222,) the plaintiffs claimed a right to the use of the words club house, as a prefix to gin sold by them. In deciding that case, Robertson, J. refers to the case of The Collins Co. v. Gowen, (3 Kay. & John. 428,) in which the Vice Chancellor of England lays down the rule as to trade marks as follows : “ There is no such thing as property in a trade mark as an abstract name. It is the right which a person has' to use a certain name for articles which he has manufactured, * * * becahse the mark
or name denotes that articles so- marked, were manufactured by a certain person, and no one else can have the right to put the same name upon his goods and thus represent them to have been manufactured by the person whose mark it is.” After examination of various cases in England and this country, he concludes, “that the general rule is against appropriating mere words as a trade mark. The exception is of those indicating ownership or origin, having no reference to quality or use. They aré but a symbol, which from the nature of " *483the fact they are used to signify, others might employ with equal truth and therefore have an equal right to-employ them for the same purpose.5'
There is also another fact connected with the labels used by both parties, which bears upon the question under discussion. It is that both parties have placed openly and distinctly upon their pens and packages their own names as the manufacturers. It is difficult to see how the defendants could impose their pens on the public as made by Gillott, with such a distinct avowal of their own names as the makers. Unless the intent in using a trade mark is to mislead the public by selling the goods as manufactured by the party seeking to prevent its use, he can have no claim therefore. This was so held in Singleton v. Bolton, (26 C. L. 169, S. C. 3 Doug. 293,) where it was said, “ when both parties use the same mark and no evidence is given that the defendant sold the goods as if prepared by the plaintiff, though he was the inventor, no action lies.”
It is evident from the testimony in the case, and even from that of Mr. Owen, the plaintiff's agent, that the patterns of the different pens are distinguished by numbers. These seem to have been arbitrarily selected, and yet are known to the trade as distinguishing different patterns and qualities of pen, whether made by the plaintiff or others. As such they have been used by various manufacturers and dealers for upwards of twenty years. The judge at the circuit found that the plaintiff had no knowledge that the number 303 had been so used by others. And yet there is in evidence a notice placed in every bos of the plaintiff’s pens which have been used for more than twenty years, stating that “ other makers had adopted the above number (303) by which the original Gillott’s Victoria Pen is known.”
It seems to me that this use of the number 303, by other dealers for more than twenty years, which fact was known to the plaintiff, must be treated as an aquiescence by him in its use, even if he could be considered as having a right to it.
*484[New York General Term, January 8, 1867,There was error in holding that the plaintiff, hy the use of this number, became entitled to the exclusive use thereof and to the profits thereof, and that he is entitled to an injunction restraining the defendants from the use thereof.
The judgment should be reversed.
Judgment affirmed.
Leonard, Clerke and Ingraham, Justices.]