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SAXLEHNER v. NIELSON.

(Circuit Court, E. D. New York.

June 30, 1898.)

Trade-Marks and Trade-Names — Infringement of Labels.

One using a name or mark, which is free to the public, in connection with a label purposely imitating the label of another, which he has the exclusive right to use, for the purpose of utilizing, by the use of the simulated label, the reputation of such other, will be enjoined from a further use of such label, and held to account l'or previous damages.

This was a suit in equity toy Emilie Saxlehner against Alexander Melson to enjoin an unfair use of latoels and trade-marks, and for an accounting for past infringements.

1 ¡riesen &Knauth, for complainant.

Louis C. Raegener, for defendant.

SI1IPM AN, Circuit Judge.

This is a hill in equity by a resident of Budapest, in Hungary, and a subject of the king of Hungary, against a citizen of Brooklyn and the state of New York, to enjoin him from the sale of Hungarian bitter water under the name of “Ilunyadi Lajos,” and in bottles bearing labels which imitate those used by the complainant in her business of selling in this country a Hungarian bitter water called “Hunyadi Janos.” A similar action by the complainant against the Eisner & Mendelson Company, to restrain that company from the use of the name “Hunyadi Matyas,” has recently been tried before me in the United states circuit court for the ¡Southern district of Yew York, upon a full record; and the facts in regard to the history of the name “Hunyadi” in connection with the sale of Hungarian bitter waters, and to the history of such sales in this country, and to the exclusive right of the complainant to the name, and the conclusions of the court, are stated at length in the opinion, which has just been filed, and need not be formally repeated. 88 Fed. 61. The record in this case is much shorter, and gives the Hunyadi history in a somewhat disjointed way; hut the conclusion that the complainant had no exclusive right in this country, after the year 1888, to the name “Ilunyadi,” is unaltered.

The history of the complainant’s red and blue label, which has been used in this country upon the bottles of her Ilunyadi Janos water, was also stated in the Eisner & Mendelson Case. The firm of Bell, Pollitz & Co., of which Nielson was a member, began to import Hungarian bitter water into this country in 1892, under the name of “Hunyadi Lajos,” and to sell it in bottles with labels closely resembling the red and blue labels of the complainant. The water was called by that name in Hungary, and the importers used the label because if was associated in the minds of the public with the character and reputation of the Janos water, and because its use greatly facilitated the sale of any Hunyadi water, and created for the Lajos water a. market without trouble or expense. The use of this simulated label was intentional, and was fraudulent in its object and in its results. It does not appear in the record when the partnership of Bell, Pollitz & Go. was dissolved, and when Nielson took the business upon himself; *72but he continued the use of the label upon the bottles which he sold until after the commencement of this suit, when he changed the label. He was notified of the alleged infringement in October, 1896. ' The complainant is not chargeable with laches in not taking earlier measures to suppress the defendant’s use of the label. There can be no decree against the use of the name “Hunyadi.” Let there be an interlocutory decree for an injunction against the infringement of the complainant’s red and blue label, and an accounting of the damages to the complainant arising from the infringements since the defendant’s sole ownership of the business. The question of costs will be reserved until final decree.

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