(dissenting.) I cannot concur in the result to which my brethren have come. The only gro* for an injunction is to prevent the defendants from deft;' • ing the plaintiffs. To justify an injunction it should be reasonably certain that the plaintiffs will be defrauded. There is no intention to defraud, for it is expressly found that the defendants acted in good faith. It is not found that the defendants, in a single instance, or others, have 'sold the defendants’ goods as the plaintiffs’ ,■ and it is not reasonably certain that such will be the result in the future. The only part of the finding which indicates such a result is the following:—“ The size and color of the labels or wrappers and the trade-mark or device printed thereon on the ounce packages used by the defendants as hereinbefore stated, resemble the plaintiffs’ labels, wrappers and device thereon used on ounce packages as hereinbefore stated, to such a degree that they are liable to deceive careless and unwary purchasers who buy such goods hastily and with but little examination; but purchasers who read the entire trade-mark and label on the defendants’ goods cannot be deceived or mistake the defendants’ goods for the plaintiffs’.”
It will be observed that the name “ Taylor & Co.,” as an essential or material feature of the case, is carefully excluded. Three things only are important—the device, and the size and color of the labels. The plaintiffs claim nothing from the device or trade-mark proper. Hence that may be laid out of the case. In respect to the size the finding is that “ in general all hair-pin makers put up their goods in similar sized packages, wrapped around with a paper of the size and shape of exhibit No. 1,”—the plaintiffs’ wrapper or label. As to color it is found that “ pink and yellow papers of substantially the same shape and size and shade of the paper used by the plaintiffs in this case are used by other hair-pin manufacturers in putting up their goods for market.” How, under this finding, the plaintiffs can have any right superior to that of the defendants, to the use of labels of the size, shape and' color of those used by other manufacturers generally, is beyond my comprehension.
*288But assuming, as I think a majority of the court must assume, that the imitation consists in the general arrangement and appearance of the labels, including of course the name as an important feature of it, still I contend that the plaintiffs have suffered and are in danger of suffering no legal damage. “ Liable to deceive ” purchasers. That is not equivalent to finding that they will be deceived, or that they will probably be deceived, or that the arrangement is calculated to deceive. And it certainly falls far short of showing that it is reasonably certain that they will be deceived. It indicates a possibility, but not necessarily a probability. A man is liable to be struck by lightning, but hardly one in a million ever experiences it. If that is objected to as an extreme case, take another illustration. Every man who travels by railroad or steamboat is liable to be injured by some accident, and yet hardly one in ten thousand is so injured. I use these illustrations for the purpose of showing that a liability ordinarily imports less than a probability.
It will be claimed however that the word as used in this finding is used in a different sense, or at least that it must be interpreted with reference to the subject matter to which it is applied. That I readily grant; and I concede all that I think can be reasonably claimed, that it shows that there is an even chance that some purchasers will be deceived. What if some few of the many millions of those who use hair-pins are led to purchase the defendants’ goods supposing them to be the plaintiffs’ ? When we consider that it is only consumers that are liable to be deceived—for it is expressly found that dealers are not—and that each consumer purchases in small quantities, paying therefor a mere trifle, it is obvious that the loss of profits to the plaintiffs from that source will be very small and that it will require large numbers of persons to be thus misled before the loss will be appreciable. The finding fails to show that that will be the result. The loss of profits may and probably will be infinitesimal. Courts of equity do not grant injunctions for trifling matters. On the other hand the loss may be *289considerable; but that is uncertain,• the court is called upon to act, not upon facts but upon conjecture. It seems to me much better that the plaintiffs should be required to wait until they can show positively that they will suffer material damage before asking for an injunction.
Again; it is only the careless and unwary that are liable to be deceived. The consumer who knows the plaintiffs’ goods and really desires to buy them will be vigilant and know what he buys. He cannot be deceived. The consumer who does not know them, or who has no particular preference for them, will be careless and unwary, or in other words indifferent. No manufacturer has a better right than others to the trade of that class. That is open to legitimate competition ; and when a customer is secured by one, so long as there is no fraud actual or constructive and no deception, there can be no injury in a legal sense to another.
I take it that this proposition cannot be controverted, that no injunction can properly issue unless the defendant represents or is about to represent in some manner or-by some means that the goods which he makes and sells are the goods of another. When his purpose to do so clearly appears the case is free from difficulty and cqurts will protect the injured party in respect to all classes of purchasers. But when, as in this case, the resemblance is not designed, but is incidental, and results solely from the similarity of names in connection with the style and manner of preparing the goods for market, which style and manner are common to all manufacturers, the case is different, and courts ought to proceed with more caution. This distinction is an important one, and seems to me not to have been considered by the majority of the court. To cases of the former class the language of the courts as cited in the majority opinion may well apply. But it cannot be applied indiscriminately to cases of the latter class without danger of doing injustice. There is a rule however applicable to these cases which is well established. I quote from some of the authorities, both English and American:—
In I. W. Thorley’s Cattle Food Co. v. Massam, 42 Law *290Times, (N. S.) 856, Baggallay, L. J., says:—“ Have the company, in offering for sale the article manufactured by them, made representations which were calculated to induce a reasonable belief on the part of those to whom the offers were made that the articles were manufactured by Joseph Thorley ? ” In Leather Cloth Co. v. American Leather Cloth Co., 11 House of Lords Cas., 585, the Lord Chancellor says:—“All which can be done is to ascertain in every case as it occurs whether there is such a resemblance as to deceive a purchaser using ordinary caution.” In McLean v. Flemming, 96 U. S. Reps., 245, Clifford, J., says:—“ Color-able imitations which require eareful inspection to distinguish the spurious trade-mark from the genuine are sufficient to maintain the issue; but courts of equity will not interfere when ordinary attention by the purchaser would enable him at once to discriminate the one from the other. When the similarity is sufficient to convey a false impression to the public mind, and is of a character to mislead and deceive the ordinary purchaser, in the exercise of ordinary care and caution in such matters, it is sufficient to give the injured party a right of redress if he has been guilty of no laches. What degree of resemblance is necessary to constitute an infringement is incapable of exact definition as applicable to all eases. All that courts of justice can do in that regard is, to say that no trader can adopt a trade-mark so resembling that of another trader, as that ordinary purchasers, buying with ordinary caution, are likely to be misled. When therefore a party has been in the habit of stamping his goods with a particular mark or brand, so that the purchasers of his goods having that mark or brand know them to be of his manufacture, no other manufacturer has a right to adopt the same stamp ; because, by doing so, he would be substantially representing the goods to be the manufacture of the person who first adopted the stamp, and so would or might be depriving him of the profits he might make by the sale of the goods which the purchaser intended to buy.” This last remark 'is substantially in the language of Lord Chancellor Cranworth in Seixo v. Provezende, L. Reps., 1 Chancery Appeals, 196. “ The court is not bound to *291interfere where ordinary attention will enable purchasers to discriminate between the trade-marks used by different parties.” Popham, v. Cole, 66 N. York, 76. If the trademark “would not probably deceive the ordinary mass of purchasers an injunction will not be granted.” Blackwell v. Wright, 73 N. Car., 310. “All the authorities agree that the court will not restrain the defendant from the use of a label on the ground that it infringes the plaintiff’s trademark, unless the form of the printed words, the words themselves, and the figures, lines and devices, are so similar that any person with such reasonable care as the public generally are capable of using and may be expected to exercise, would mistake the one for the other.” Gilmore v. Hunnewell, 122 Mass., 139.
These quotations indicate to my mind the true rule. The imitation or resemblance must be of such a character as to amount to a representation that the goods which the defendants make are goods made by the plaintiffs. It necessarily follows that before there can be any legal injury the representation must he believed hy the purchaser. The careful and vigilant purchaser examines and takes pains to know before he purchases; and if he purchases the defendants’ goods for the plaintiffs’, it is because he believes them to be such. On the other hand the careless and unwary purchaser takes little or no pains and purchases without any real belief on the subject. He may have a vague and indefinite notion, but it does not amount to a belief, so that it can be truly said of him that he has been misled.
This illustrates at once the distinction, and the reasonableness of the rule, for which I am contending. The careless and unwary purchases the goods made by one man, not because he believes they were made by another, but because he is so far indifferent that he takes no pains to ascertain. He has not been legally misled. The cautious man purchases them because he believes they were made by another. He has been misled.
Hence the propriety of the rule that the imitation must be calculated to deceive purchasers of ordinary caution.
For these reasons I think the injunction should not issue.