Patten a. The Accessory Transit Company.

danger of insolvency. These undeniable positions render it imperative on the court to appoint a receiver in this case.

The exercise of this power must depend upon the sound discretion of the court, and when it appears fit and reasonable, some indifferent person, under approved security, shall take charge of the property for the greater safety of all the parties concerned (Verplanck a. Caines, 1 Johns. Ch. R., 57).

So when, as is apparent in this case, there are no persons authorized on behalf of the corporation to take charge of and conduct the affairs of the corporation, and preserve and protect its property, a receiver will be appointed to take charge of the ef fects of the corporation, and preserve them for the benefit of the creditors and stockholders generally (Lawrence a. The Greenwich Insurance Company, 1 Paige, 587). A receiver will also be appointed to prevent the removal of property beyond the jurisdiction of the court.

In every light in which I have regarded this case, it seems to me to be my duty to appoint a receiver to take charge of this property. I am unable to see that the rights of any one can be injured by it, but, on the contrary, I think that those of all interested in this property will be preserved thereby. The rights of the mortgagees prior to those of Mr. Vanderbilt, and the parties interested under these mortgages, cannot be prejudiced.

Mr. Vanderbilt's security for the moneys advanced by him is not in any way impaired. The rights of the attachment and execution creditors to what may remain, after the payment and discharge of these prior liens are secured, and the Company attains what it ought especially to desire, the application of its property to the payment of its just debts and its preservation for that purpose, in the order of the respective claimants.

An order will therefore be entered for the appointment of a receiver, without prejudice to the rights of the mortgagees under the several mortgages to secure the payment of the bonds issued by the Company, or to the rights of the holders thereof, or to the rights of Mr. Vanderbilt under the mortgages executed to him.

Let it be provided in the order that the receiver have no power to sell or dispose of the property, or any part thereof, without special leave of the court.

Fetridge a. Wells.

FETRIDGE ɑ. WELLS.

New-York Superior Court; Special Term, January, 1857.

INJUNCTION.-TRADE-MARKS.-COSTS.

In what cases and upon what principles a court of equity will grant plaintiff an injunction to protect him in the use of a trade mark.

Equity will not interfere to protect a party in the use of a trade-mark, where the name or phrase claimed as such is intended and calculated to deceive the public.

Where an injunction restraining the use of a trade-mark is dissolved on the ground that the mark is false and fraudulent, and that the plaintiff is therefore not entitled to the protection of a court of equity against the infringement shown, the order dissolving the injunction should be without costs.

Motion to dissolve an injunction.

This was an action for an injunction to restrain the defendants from using a trade-mark claimed by plaintiff.

The plaintiff had purchased the recipe for making a certain cosmetic which he had for a long time sold under the name of —“་

"The Balm of Thousand Flowers." The defendants had engaged in the manufacture and sale of a similar article, which he styled "The Balm of Ten Thousand Flowers." The plaintiff claimed title to the name used by him, as a trade-mark; and brought this suit to procure the defendants to be enjoined from employing any imitation of it. A preliminary injunction was granted by Mr. Justice Hoffman, which defendants now moved to dissolve.

Other facts respecting the use by plaintiff of the trade-mark claimed, the alleged infringement by defendants,—the nature and composition of the cosmetic sold by plaintiff, &c.,—are fully set forth in the opinion in this case; and also in that of Mr. Justice Hoffman in the case of Fetridge a. Merchant (Post, 156). The two cases arose upon the same state of facts, and should be read in connection.

Blatchford, Seward, & Griswold, for the motion.

Brown, Hall, & Vanderpool, and E. W. Stoughton, opposed.

Fetridge a. Wells.

DUER, J.-This is a motion on the part of defendants to dissolve an injunction which was granted by Mr. Justice Hoffman, and by which the defendants are restrained from selling, or of fering for sale, directly or indirectly, any preparation or compound manufactured by them, or by either of them, or by any person or persons other than the plaintiff or the firm of W. P. Fetridge & Co., under the name, &c., of "Balm of Thousand Flowers;" or selling, or offering for sale, any preparation or compound having printed, painted, written, or stamped on the bottles containing the same the words "Balm of Thousand Flowers;" or having or using any label or wrapper, printing or device, in such manner as to be a colorable imitation of those used by the plaintiff, or by the firm of William P. Fetridge & Co., to designate or distinguish the plaintiff's preparation or compound usually known as "Balm of Thousand Flowers."

It is apparently a case of great interest to the parties, and has been very fully and ably argued by their respective counsel; and in compliance with their wishes, I have attentively considered all the questions which it involves, although in relation to many of them it will not be necessary nor expedient that I should now express or intimate an opinion.

Without rejecting the evidence of my senses, I cannot doubt that the label or trade-mark which the defendants admit that they propose to use, from its general resemblance to that of the plaintiff and his firm, is well calculated to mislead the public, by inducing the belief that the articles to which it is affixed are in reality prepared or manufactured by the plaintiff's firm. Nor can I doubt that the label was framed with this design, since the imitation is so close, minute, and exact as, in my opinion, to exclude the supposition of any other motive.

It is true that the name of R. H. Rice, as proprietor, is printed on the label, but it is so printed as not to attract, but almost certainly to elude observation. A variation must be regarded as immaterial which it requires a close inspection to detect, and which can scarcely be said to diminish the effect of the facsimile which the simulated label in all other respects is found to exhibit. Hence, were this the only question in the case, I should have no difficulty in holding that the injunction, which is sought to be dissolved, must, to some extent, be retained and enforced; but, it is proper to add that, upon no supposition,

VOL IV.-10

Fetridge a. Wells.

would I consent to retain it for all the purposes for which it has been granted, and for which its continuance has been asked.

The position, so strenuously insisted on, that the plaintiff's firm have an exclusive property in the words "Balm of Thousand Flowers," or, which is the same thing, an exclusive right to use those words in a trade-mark, I wholly reject.

It is not necessary to deny that a name may; in some cases, be rightfully used and protected as a trade-mark, but this is only true when the name is used merely as indicating the true origin or ownership of the article offered for sale; never where it is used to designate the article itself, and has become, by adoption and use, its proper appellation. When a new preparation or compound is offered for sale, a distinctive and specific name must necessarily be given to it.

The name thus given to it, no matter when or by whom imposed, becomes by use its proper appellation, and passes as such into our common language. Hence, all who have an equal right to manufacture and sell the article have an equal right to designate and sell it by its appropriate name, the name by which alone it is distinguished and known, provided each person is careful to sell the article as prepared and manufactured by himself, and not by another. When this caution is used there is no deception of which a rival manufacturer, not even the manufacturer by whom the distinctive name was first invented or adopted, can justly complain; and so far from there being any imposition upon the public, it is the use of the distinctive name that gives to purchasers the very information which they are entitled to have. In short, an exclusive right to use on a label or other trade-mark the appropriate name of a manufactured article, exists only in those who have an exclusive property in the article itself; and it is not pretended that the plaintiff or his firm have any exclusive property in the preparation or compound to which the well-sounding name of "Balm of Thousand Flowers" has been given. It is only the seductive name that they claim as their exclusive property, and, doubtless, from their experience of its value in the extension of their sales. This, however, is a species of property that, in my opinion, is unknown to the law, and that can only be given to one by the infringement of the rights of all.

My views on the general question of an exclusive right to sell

Fetridge a Wells.

an article by its distinctive name were fully expressed in the case of the Amoskeag Manufacturing Company a. Spear (2 Sandf., 599), and, as I think is there shown, are sustained by express decisions, of the King's Bench in Singleton a. Bolton (3 Doug., 293); of Vice-Chancellor Plumer, in Canham a. Jones (2 Ves. & B., 218); and of the Chancellor, Lord Cottenham, in Millington a. Fox (3 Mylne C., 328).

It is true there are some observations of the Master of the Rolls in Perry a. Truefitt (6 Beav., 66), that seem to favor an opposite doctrine; but when that case is examined, it will be found that the plaintiff claimed an exclusive property, not merely in the name, but in the composition to which it was applied; and it is admitted, and is sufficiently obvious, that an exclusive property in the subject carries with it, in all cases, an exclusive right to the use, as a trade-mark, of its appropriate name.

The remarks that I have now made would suffice for the decision of this motion, were the only question that of the similarity of the trade-marks, but there is another and a grave and important question to which the counsel for the defendants have earnestly directed my attention: that question is, whether, even upon the supposition that all the material allegations in the complaint are true, the conduct and proceedings of the plaintiff and his firm have not been such as justly to preclude them from any claim to relief in a court of equity. This question, it is true, is not raised in the answer of the defendants, but it is raised by the facts which the affidavits and other papers before me have disclosed, and, in my opinion, it is emphatically the question that, as a judge in equity, I am bound to consider and determine.

It may be true that the defendants, if permitted to use in their contemplated sales a trade-mark apparently the same as that of Fetridge & Co., would commit a fraud upon the plaintiff and upon the public; but if the plaintiff and his firm are themselves engaged in the execution of a systematic plan for deceiving the public; if they have been and are endeavoring, constantly and daily, to multiply their sales and swell their profits by false representations of the composition, qualities, and uses of the liquid compound which they invite the public to buy, it is strenuously insisted that a court of equity would violate its principles and abuse its powers by consenting to aid them by an injunction or