On ordinary observation, the labels used by the two parties in this case would not be apt to be distinguished the one from the other — the size, shape, vignette. coloring and marking being so nearly identical as to make them easily pass for the same, and the only difference discernible, on considerable scrutiny, being in the name of the warrantor, stam] >ed upon them in letters so small as not readily to attract notice.
It is this apparent similitude or counterfeiting which is the grievance complained of. A tradesman, to bring his privilege of using a particular mark under the protection of equity, is not bound to prove that it has been copied in every particular by another. It is enough for him to show that the representations employed bear such resemblance to his as to be calculated to mislead the public generally who are purchasers of the article, and to make it pass with them for the one sold by him. If the in-dicia or signs used tend to that result, the party aggrieved will be allowed an injunction staying the aggression until the merits of the case can be ascertained and determined. 2 Story, Eq. Jur. § 051; 2 Kent, Comm. (7th Ed.) 453, notes.
I cannot regard the denial by the defendant’s affidavit alone, of the equity of the bill, as sufficient to defeat the motion for an injunction, resting, as it does, upon the positive oath of the plaintiff, and his long and unquestioned use of his design and mark. The affidavit has not the weight and effect of an answer. The allegations of the bill are, moreover, corroborated by facts set up in an additional affidavit, and not denied by the defendant, that he offered to destroy the labels prepared by him. and pay the expenses incurred by the plaintiff in this action, if the suit could be stayed, and by the further statement, not denied or explained *141by the defendant, that no such persons or firm as those named in the defendant’s affidavit, as having ordered the labels prepared by him, could be discovered, or heard of, in Baltimore, on inquiry there for them. These are matters : of signal importance, and demanded a clear ¡ explanation by the defendant in his affidavit, addressed to the equitable consideration of the court.
The case is, in its general features, plainly within the scope ot those cases over which courts of equity exercise the jurisdiction now applied for. The principles of the rules upon which injunctions are granted to suppress this description of wrong, and the extent to which the relief is carried, are largely discussed and distinctly settled in the summary of the adjudications, in late publications. 2 Kent, Comm. (7th Ed.) 473, and notes; 2 Eden, Inj. (by Waterman) 271, notes; 2 Story, Eq. Jur. § 951.
It is objected that the bill is defective in substance because James Smith & Son are not made parties, and that an injunction will be denied upon a bill which would be pronounced virtually insufficient on demurrer. Bills of this description are not maintainable upon the ground that the plaintiff has a right of property in the trade-mark. The relief is given because the mark is a sign or representation, importing, and so understood and acted upon by the public, that the article to which it is attached is the manufacture or production which is generally known in market under that denomination. Coffeen v. Brunton [Case No. 2,940], The owner of the goods which bear the indicia is considered to be prejudiced in his interests if others cau be permitted to come into the market with the same representation, and thus delude purchasers by vending inferior articles, or diminish the owner’s .business by acquiring sales to themselves under color of his reputation. The party, then, whose interests are directly affected by the wrong, is entitled to proceed in his own name to procure its suppression; and the person for whom goods are manufactured has the. same legal right to affix and maintain a special trade-mark, as the manufacturer himself. Amoskeag Manuf’g Co. v. Spear, 2 Sandf. 599; Taylor v. Carpenter, 2 Sandf. Ch. 614.
The plaintiff was not the inventor of this, label or trade-mark, nor the one who originally adopted it, but he is the assignee of it, and of the good-will of the trade. He stands, thus, in the same relation to the defendant as his assignor would, and whatever privilege the law accorded to James Walton, in the possession and use of the trade-mark, passed to and can be enjoyed by the plaintiff under the assignment.
I think that the plaintiff is entitled, upon his bill .and the proofs before me. to an injunction in the cause, until the further order of the court. Order accordingly.