¶1The plaintiff manufactures low-priced costume jewelry, sold in the main to department and specialty stores. The defendant Steinberg in this instance manufactured a cheaper product, similar in many respects to that of plaintiff and claimed by plaintiff to be illegally and unfairly copied. The defendant Coro, Inc., is a jobber, who bought from Steinberg, admittedly without knowledge of plaintiff’s present claim.
¶2Plaintiff conceeds that his product is not copyrighted or trademarked. He claims that independent of such laws he is entitled to an injunction as defendants are acting illegally and unfairly and that they are tort-feasors.
¶3This contention is not established factually and is not in consonance with controlling law.
¶4The articles not being copyrighted or trade-marked are in the public domain and may be copied whether original or not (Miss Susan, Inc., v. Enterprise & Century Undergarment Co., 270 App. Div. 747) subject to the proviso, that the public must not be misled to their detriment by any device or representation tending to establish a belief that it is buying the plaintiff’s superior product when in reality obtaining defendant’s less valuable article. This subject was considered recently by the Court of Appeals in Press-On, Inc., v. Goodman (293 N. Y. 36, 38). The ruling was that there must be “ palming off, substitution, deception, simulation of package or trademark * # #
¶5Here neither product bears on its reverse side any name, mark or other indication to the public as to its authorship. There is no package, no deception and no proof that any substitution is attempted. There is no evidence that any member of the buying public was deceived or is apt to be.
¶6It is unfortunate that persons engaged in the same line of industry speedily avail themselves of all good ideas submitted to the public therein, but under our laws such results may obtain.
¶7There is no proof justifying the defendant’s counterclaim.
¶8Judgment for defendants dismissing complaint.
¶9Judgment for plaintiff dismissing counterclaim.