By the Court.
Brady, J.The plaintiff in this case did not rely upon the words “ desicated codfish ” as the distinguishing symbol for his manufacture. If he had done so, it would be necessary, in order to sustain the ruling at special term, to show that there was a difference between the plaintiff’s trademark and that which was upheld in Messerole v. Tynberg, decided in this court. The plaintiff, as appears from the labels employed by him, used the words 16 desicated codfish” to de*56scribe the article of merchandise which he offered for sale. The word “ desicated ” implied that in his preparation of codfish it was deprived of moisture, but in what manner and with what advantages, are not stated on the labels. This is apparent from the, fact that the label exhibits the letter 0 with a fish traversing it, on which is printed, “ Trade-mark,” and that is his trademark, in the use of which he would be protected. But as already stated, he has not relied upon the words “ desicated codfish ” exclusively, and these words are the only appropriation which the defendants have made of any valuable part of the plaintiff’s label. The defendants have adopted a trade-mark and a label different from that of the plaintiff both in design and color. It also appears that the word “desicated” had been used prior to its employment by the plaintiff, to designate various animal and vegetable substances, by William J. Band, under whose authority the defendants are manufacturing, and that he' had desicated fish, although it does not appear that he had, or that the defendants or any other person had, publicly used the word in reference to codfish prior to the plaintiff. Although the word itself is one in which no person could have an exclusive property, yet the application of it to a particular manufacture, might have created in reference to such manufacture an exclusive proprietorship, but it could not be acquired unless the words alone were employed to accomplish the reputation and value of the manufacture, and succeeded in doing so. If any other symbol be employed, which, with the words used, constitute the trade-mark, the words cannot be said to have the object suggested, and must be regarded as indicating quality, description, or process, as the case may be. I think, for these reasons, that the order should be affirmed.
Order affirmed.