[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 429 The injunction awarded by the decision of the referee restrained the defendants from in any way using the name and designation "Meneely" in the business of bell *Page 431 founding in the city of Troy. The name of one of the defendants is Meneely, and he was engaged in the business mentioned. The necessary consequence of the injunction was to compel the defendant Meneely either to discontinue his business of bell founding at Troy or procure it to be conducted in the name of some other person. He was absolutely prohibited from the use of his own name in his own business, in any way.
The bare statement of the scope of the injunction would seem to be sufficient to show that it ought not to have been granted and that the judgment awarding it was erroneous.
The cases referred to in its support fall far short of sustaining it. If the defendants were using the name of Meneely with the intention of holding themselves out as the successors of Andrew Meneely and as the proprietors and managers of the old established foundry which was being conducted by the plaintiffs, and thus enticing away the plaintiffs' customers, and if with that intention they used the name in such a way as to make it appear to be that of the plaintiffs' firm, or resorted to any artifice to induce the belief that the establishment of the defendants was the same as that of the plaintiffs, and, perhaps, if without any fraudulent intent they had done acts calculated to mislead the public as to the identity of the establishments and produce injury to the plaintiffs beyond that which resulted from the similarity of name, then the cases referred to sustain the proposition, not that a court of equity would absolutely restrain the defendant Meneely from the use of his own name in any way or form, but simply that the court would enjoin him from using it in such a way as to deceive the public and injure the plaintiffs. The manner of using the name is all that would be enjoined, not the simple use of it; for every man has the absolute right to use his own name in his own business, even though he may thereby interfere with or injure the business of another person bearing the same name, provided he does not resort to any artifice or contrivance for the purpose of producing the impression that the establishments are identical, *Page 432 or do any thing calculated to mislead. Where the only confusion created is that which results from the similarity of the names the courts will not interfere. A person cannot make a trade mark of his own name, and thus obtain a monopoly of it which will debar all other persons of the same name from using their own names in their own business.
This principle is fully recognized in the cases cited in the briefs of counsel. They have been so fully commented on in the learned opinion of my brother, MILLER, J., delivered at General Term, that I do not deem it necessary or proper again to review them in detail. A reference to a few of them will suffice. In the case of Croft v. Day (7 Beav., 84) the intention of the defendants to imitate the blacking manufactured by the plaintiffs, under the name of Day Martin, and to sell it as theirs, was apparent. The master of the rolls stated: "My decision does not depend on any peculiar or exclusive right the plaintiffs have to use the name Day Martin, but upon the fact of the defendants using their names in connection with certain circumstances, and in a manner calculated to mislead the public and to enable the defendant to obtain, at the expense of Day's estate, a benefit for himself to which he is not in fair and honest dealing entitled. * * * He has a right to carry on the business of a blacking manufacturer honestly and fairly; he has a right to the use of his own name. I will not do any thing to debar him from the use of that or any other name calculated to benefit himself in an honest way; but I must prevent him from using it in such a way as to deceive and defraud the public." The form of the injunction was settled after argument. It did not restrain the defendants from the use of their names of Day Martin, but from selling blacking in bottles having labels so contrived as to represent it to be the same as that sold by the plaintiffs. Rodgers v. Nowill (5 Man., Gr. Scott, 109) was an action for damages. The defendant used not merely the firm name of the plaintiffs, but their trade mark of a crown with the letters V. and R., on either side, above the name; and the verdict was sustained on that ground. *Page 433 Sykes v. Sykes (3 B. Cr., 541) was a similar action, and decided on the same principle. The plaintiff had adopted the mark, "Sykes patent," which the defendant imitated in order to denote that the goods sold by him were of plaintiff's manufacture; the defendant had never had any patent, and he imitated the plaintiff's stamp.
In Holloway v. Holloway (13 Beav., 209) the defendant did not merely sell his pills as "H. Holloway's Pills," but sold them in boxes and with labels and wrappers made in imitation of those of the plaintiff, and manufactured for the express purpose of deceiving. The court in that case said: "The defendant's name being Holloway, he has a right to constitute himself a vendor of Holloway's pills and ointment; and I do not intend to say any thing tending to abridge that right; but he has no right to do so with such additions to his own name as to deceive the public, and make them believe he is selling the plaintiff's pills and ointment." The injunction in that case was not against selling pills as "Holloway's pills," etc., but against selling them as such put up in boxes, etc., having labels so contrived or expressed as by colorable imitation, or otherwise, to represent them to be the same pills, etc., as were sold by the plaintiff. In Clark v. Clark (25 Barb., 79) the plaintiff had adopted a device which contained the name Clark Co. The defendant's was a copy of the plaintiff's device, except that it contained the name of J. Clark, Jr., Co. The injunction was sustained as to the device, but not as to the name. In Faber v. Faber (49 Barb., 357) an injunction restraining the defendant from using his own name as a mark upon his pencils, though interfering with a similar business previously established by another person of the same name, was refused, and I find no precedent for such an injunction. (See also, Burgess v. Burgess, 17 Eng. L. and E., 257, and Meriden Britannia Co. v. Parker, 39 Conn., 450.) In the case last cited the plaintiff's trade mark or stamp was "1847, Rogers Bros., A. 1." The defendant stamped like goods manufactured by him, "C. Rogers Bros., A. 1," and "C. Rogers *Page 434 Bros., A. 1." The plaintiff prayed for an injunction against the use of their stamps or of any stamp of which the word "Rogers," or "Rogers Bros.," should form the whole or a part. The court granted the injunction as to the stamp and as to the use of the words "Rogers Bros.," but refused to prohibit the use of the name, "Rogers."
In the present case the injunction consists wholly of a prohibition of the use of the name "Meneely" in any way. It is in conflict with all the cases upon the subject. If the evidence showed any attempt by the defendants, by means of catalogues or by any other contrivance, to induce the belief that the firm of Meneely Kimberly was the successor of Andrew Meneely, or the managers of the plaintiff's bell foundry, those acts might have been restrained; but no such injunction was granted or asked for. The use of the name "Meneely," in any way, was all that was enjoined, and that was the very thing which should not have been enjoined.
We think that the General Term did right in reversing the judgment and ordering a new trial; and the order must, consequently, be affirmed, with costs, and judgment absolute rendered for the defendants, in pursuance of the stipulation.
All concur; MILLER, J., not sitting.
Order affirmed and judgment accordingly.