ARTICLE 206.

TRADE-MARKS.

SECTION 2350. Trade-mark defined.

2351. Affixing defined.

2352. Article of merchandise defined.

2353. Imitation of a trade-mark defined.

2354. Offenses against trade-marks.

2355. Refilling or selling trade-mark bottles and vessels.

2356. Keeping trade-mark bottles and vessels with intent to refill or

sell them.

2357. Search for trade-mark bottles and vessels kept in violation of law authorized.

§ 2350. Trade-mark defined.

A "trade mark" is a mark used to indicate the maker, owner or seller of an article of merchandise, and includes, among other things, any name of a person, or corporation, or any letter, word, device, emblem, figure, seal, stamp, diagram, brand, wrapper, ticket, stopper, label or other mark, lawfully adopted by him, and usually affixed to an article of merchandise to denote that the same was imported, manufactured, produced, sold, compounded, bottled, packed or otherwise prepared by him; and also a signature or mark, used or commonly placed by a painter, sculptor or other artist, upon a painting, drawing, engraving, statue or other work of art, to indicate that the same was designed or executed by him.

Derivation: Penal Code, § 366, as amended L. 1882, ch. 384.

.

Congress and Emp. Co. v. High Rock Cong. Spring Co. (1871), 45 N. Y. 291, 6 Am. Rep. 82, rev'g 57 Barb. 526; Gillott v. Esterbrook (1872), 48 N. Y. 374, aff'g 47 Barb. 455; Meneely v. Meneely (1874), 1 Hun, 367, 62 N. Y. 427; Taylor v. Gillies (1874), 59 N. Y. 331, aff'g 5 Daly. 285; Caswell v. Davis (1874), 58 N. Y. 223, aff'g 4 Abb. Pr. (N. S.) 6, 35 How. Pr. 76; Phelan v. Collender (1875), 6 Hun, 244; Hier v. Abrahams (1880), 82 N. Y. 519; Smith v. Sixbury (1881), 25 Hun, 232; Wagner v. Daly (1893), 67 Hun, 477, 22 N. Y. Supp. 493; Cooke v. Miller (1901), 169 N. Y. 475, aff'g 53 App. Div. 120, 65 N. Y. Supp. 730; People v. Krivitzky (1901), 168 N. Y. 182, 16 N. Y. Cr. 55, aff'g 60 App. Div. 307, 70 N. Y. Supp. 173; Barrett Chemical Co. v. Stern (1903), 176 N. Y. 27, rev'g 71 App. Div. 616, 76 N. Y. Supp. 1009; People v. Strauss (1904), 94 App. Div. 454, 88 N. Y. Supp. 40; see also Amoskeag v. Spear, 2 Sandf. 599; Bininger v. Wattles, 28 How. Pr. 206; Booth v. Jarrett, 52 How. Pr. 169; Caswell v.

Davis, 4 Abb. Pr. (N. S.) 6, 35 How. Pr. 76; Cook v. Starkweather, 13 Abb. Pr. (N. S.) 392; Corwin v. Daly, 7 Bosw. 222; Faber v. Faber, 49 Barb. 357, 3 Abb. (N. S.) 115; Helmbold v. Helmbold Mfg. Co., 53 How. Pr. 453; Howard v. Henriques, 3 Sandf. 725; Lea v. Wolf, 1 S. C. 626, 15 Abb. Pr. (N. S.) 1, 46 How. Pr. 157; Meserole v. Tynberg, 36 How. Pr. 141, 4 Abb. Pr. (N. S.) 410; Newman v. Alvord, 49 Barb. 588, 35 How. Pr. 108, 51 N. Y. 189; Rellett v. Carlier, 61 Barb. 435, 11 Abb. Pr. (N. S.) 186; Stokes v. Landgraff, 17 Barb. 608; Town v. Stetson, 3 Daly, 53, 5 Abb. Pr. 218; Wolfe v. Burke, 7 Lans. 151, rev'd on other grounds, 56 N. Y. 115; Wolfe v. Goulard, 18 How. Pr. 64; Meridan Co. v. Parker, 39 Conn. 450, 12 Am. Rep. 410; Glendon Iron Works v. Uhler, 75 Pa. St. 467.

Clark v. Clark, 25 Barb. 76.

§ 2351. Affixing defined.

A trade-mark is deemed to be affixed to an article of merchandise, when it is placed in any manner in or upon:

1. The article itself; or,

2. A box, bale, barrel, bottle, case, cask, platter, or other vessel or package, or a cover, wrapper, stopper, brand, label or other thing, in, by or with which the goods are packed, inclosed, or otherwise prepared for sale or disposition.

Derivation: Penal Code, § 367, as amended L. 1882, ch. 384; L. 1904, ch. 494.

& 2352. Article of merchandise defined.

The expression "article of merchandise," as used in sections twenty-three hundred and fifty and twenty-three hundred and fiftyone, signifies any goods, wares, work of art, commodity, compound, mixture or other preparation or thing, which may be lawfully kept or offered for sale.

Derivation: Penal Code, § 365, amended L. 1882, ch. 384.

§ 2353. Imitation of a trade-mark defined.

An "imitation of a trade-mark" is that which so far resembles a genuine trade-mark as to be likely to induce the belief that it is genuine, whether by the use of words or letters, similar in appearance or in sound, or by any sign, device or other means whatso

ever.

Derivation: Penal Code, § 368, as amended L. 1882, ch. 384.

Popham v. Cole (1876), 66 N. Y. 89, 6 J. & Sp. 274, 14 Abb. Pr. (N. 8.) 206, aff'g 38 N. Y. Super. 274, 14 Abb. Pr. (N. S.) 206; Coleman v. Crump (1877), 70 N. Y. 573; People v. Fisher (1889), 50 Hun, 552, 3 N. Y. Supp.

786; Wagner v. Daly (1893), 67 Hun, 477, 22 N. Y. Supp. 493; see also Electro-Silicon Co. v. Levy, 59 How. Pr. 469; Brooklyn White Lead Co. v. Masury, 25 Barb. 416; Brown v. Mercer, 5 J. & Sp. 265.

Merrimack Mfg. Co. v. Garner, 4 E. D. Smith, 387, 2 Abb. 318; Williams v. Johnson, 2 Bosw. 1; Godillot v. Hazard, 7 Daly Reg. 773.

§ 2354. [Am'd. 1099.] Offenses against trade-marks. A person who:

1. Falsely makes or counterfeits a trade-mark; or,

2. Affixes to any article of merchandise, a false or counterfeit trade-mark, knowing the same to be false or counterfeit, or the genuine trade-mark, or an imitation of the trade-mark of another, without the latter's consent; or,

3. Knowingly sells, or keeps or offers for sale, an article of merchandise to which is affixed a false or counterfeit trade-mark, or the genuine trade-mark, or an imitation of the trade-mark of another, without the latter's consent; or,

4. Has in his possession a counterfeit trade-mark, knowing it to be counterfeit, or a die, plate, brand or other thing for the purpose of falsely making or counterfeiting a trade-mark; or,

5. Makes or sells, or offers to sell or dispose of, or has in his possession with intent to sell or dispose of, an article of merchandise with such a trade-mark or label as to appear to indicate the quantity, quality, character, place of manufacture or production, or persons manufacturing, packing, bottling, boxing or producing the article, but not indicating it truly; or,

6. Knowingly sells, offers or exposes for sale, any goods which are represented in any manner, by word or deed, to be the manufacture, packing, bottling, boxing or product of any person, firm or corporation, other than himself, unless such goods are contained in the original packages, box or bottle and under the labels, marks or names placed thereon by the manufacturer who is entitled to use such marks, names, brands or trademarks; or,

7. Shall sell or shall expose for sale any goods in bulk, to which no label or trade-mark shall be attached, and shall by representation, name or mark written or printed thereon, represent that such goods are the production or manufacture of a person who is not the manufacturer; or,

8. Shall knowingly sell, offer or expose for sale any article of merchandise, and shall orally or by representation, name or mark written or printed thereon or attached thereto used in connection therewith, or by advertisement, or otherwise, in any manner whatsoever make any false representation as to the person by whom such article of merchandise or the material thereof was made, or

was in whole or in part produced, manufactured, finished, processed, treated, marketed, packed, bottled or boxed, or falsely represent that such article of merchandise or the material or any part thereof has or may properly have any trade-mark attached to it or used in connection with it, or is or may properly be indicated or identified by any trade-mark,

Is guilty of a misdemeanor and punishable for the first offense by a fine not less than fifty dollars nor more than five hundred dollars or imprisonment for not more than one year, or both such fine and imprisonment, and for each subsequent offense by imprisonment for not less than thirty days or more than one year, or by both sach imprisonment and a fine of not less than five hundred dollars or more than one thousand dollars. (Amended by L. 1914, ch. 332, in effect Sept. 1, 1914.)

Derivation: Penal Code, § 364, as amended L. 1882, ch. 384; L. 1889, ch. 45. Sections 3, 5, 6 amended L. 1908, ch. 427, by which, also, the last paragraph was added.

Amended by L. 1909, ch. 240. In effect Apr. 22, 1909.

People v. Hoffheimer (1905), 110 App. Div. 423, 97 N. Y. Supp. 84, 19 Crim. Rep. 566.

§ 2355. Refilling or selling trade-mark bottles and vessels. Any person engaged in making, bottling, packing, selling or disposing of milk, ale, beer, cider, mineral water or other beverage, or in making, selling or disposing of articles of pastry, may register his title as owner of a trade-mark by filing with the secretary of state and the clerk of the county where the principal place of business of such person is situated, a description of the marks and devices used by him in his business, and in case the same has not been heretofore published according to the laws existing at the time of publication, causing the same to be published in a newspaper of the county, three weeks daily, if in the City of New York or Brooklyn, and weekly if in any other part of the state; but no trademark shall be filed which is not and can not become a lawful trademark, or which is merely the name of a person, firm or corporation unaccompanied by a mark sufficient to distinguish it from the same name when used by another person. After such registration, the use without the consent of the owner of the trade-mark so described, or the filling of any bottle, siphon, barrel, platter, vessel, or thing for the purpose of sale, or for the sale, therein, of any article of the same general nature and quality which said bottle, siphon, barrel, platter, vessel or other thing before contained, without the obliteration or defacement of the trade-mark upon it, when such trade-mark can be obliterated or defaced without substantial injury to the bottle, siphon, barrel, platter, vessel or other thing so as to prevent its wrongful use, shall be deemed a misdemeanor.

Derivation: Penal Code. § 369, as amended L. 1882, ch. 384; L. 1885, ch, 513; L. 1904, ch. 494.

Mullins v. People (1862), 24 N. Y. 399, 23 How. Pr. 289; People v. Cannon (1893), 139 N. Y. 32, aff'g 63 Hun, 306, 18 N. Y. Supp. 25.

§ 2356. Keeping trade-mark bottles and vessels with intent to refill or sell them.

Any person engaged in the business of buying and selling bottles, siphons, barrels, platters, or other vessels or things, who shall with intent to defraud the registered owner of the trademark, knowingly sell or offer for sale any bottle, siphon, barrel, platter, vessel, or other thing, to any person, who he has reason to believe wrongfully intends to use the trade-mark upon it, or to fill such bottle, siphon, barrel, platter, vessel or other thing in violation of section twenty-three hundred and fifty-five, shall be deemed guilty of a misdemeanor.

Derivation: Penal Code, § 370, as amended L. 1882, ch. 384; L. 1904, ch. 494.

§ 2357. Search for trade-mark bottles and vessels kept in violation of law authorized.

Whenever a registered owner of a trade-mark, or his agent, makes oath before a magistrate that he has reason to believe and does believe, stating the grounds of his belief, that a bottle, siphon, barrel, platter, vessel or other thing to which is affixed a trade-mark belonging to him is being used or filled, or has been sold or offered for sale, by any person whomsoever, in violation of the preceding section, then the magistrate may issue a search warrant to discover the thing and cause the person having it in possession to be brought before him and may thereupon inquire into the circumstances, and if on examination, he finds that such person has been guilty of the offense charged, he may hold the offender to bail to await the action of the grand jury, and the offender shall also be liable to an action on the case for damages, for such wrongful use of such trade-mark at the suit of the owner thereof, and the party aggrieved, shall also have his remedy according to the course f equity to enjoin the wrongful use of his trade-mark, and to recover compensation therefor, in any court having jurisdiction over the person guilty of such wrongful use.

Derivation: Penal Code, § 371, as amended L. 1882, ch. 384; L. 1904, ch. 494.

Mullins v. People (1862), 24 N. Y. 399; People ex rel. Fellows v. Hogan (1890), 123 N. Y. 219, aff'g 55 Hun, 391, 8 N. Y. Supp. 451.