Stewart v. Smithson
New York Court of Common Pleas
Appeal from an order at special term, denying a motion for leave to amend an answer. This action was brought to enjoin tbe defendants from using tbe plaintiffs’ trade-mark, and foij an accounting. ; Tbe complaint alleged that tbe plaintiffs were tbé manufac-* turers of a linen thread, called “Hall and Moody’s patent thread,” and marked “ Barnsley,” which was well known in the market by that name, and to which a trade-mark of that name was attached, which belonged to them,…
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Appeal from an order at special term, denying a motion for leave to amend an answer. This action was brought to enjoin tbe defendants from using tbe plaintiffs’ trade-mark, and foij an accounting. ; Tbe complaint alleged that tbe plaintiffs were tbé manufac-* turers of a linen thread, called “Hall and Moody’s patent thread,” and marked “ Barnsley,” which was well known in the market by that name, and to which a trade-mark of that name was attached, which belonged to them, and which they had used for a number of years. Also, that they were the manufacturers of another kind of thread, called…
1Opinion of the CourtBeady, J.
The defendants, in the amendments which they asked leave to make to their answer at special term, have not alleged sufficient facts to constitute a defence. The mere fact that names used on a trade-mark are fictitious would not authorize the use of it by strangers. The question to be determined in these cases is, whether the mark used by the party claiming the protection of the court is owned by him, without regard to its form, which such party has a right to design according to his judgment or his faney. If the defendants had alleged that the firm names used on the marks never existed, that…
2Cited by2 opinions
- Dale v. SmithsonNew York Court of Common Pleas · 1861
- New York Consolidated Card Co. v. Union Playing Card Co.New York Supreme Court · 1886