(178 N.Y.S.)

of which is attached to the complaint; that the defendants planned to proceed with the performance and execution of the terms of this lease, and with the use and alteration of the said Arsenal Building; that the use of Central Park or the Arsenal Building for any of the purposes referred to is illegal, and violates the sections of the Greater New York Charter referred to, and will not aid in, but will impede and materially hinder, the beneficial use of the said Central Park by the public and the people of the city of New York, and will not contribute to, but will detract from, the use and enjoyment of the said Central Park by the public and people of the city of New York, and will not enhance, but will diminish, the opportunities of the people and public of the city of New York to use and enjoy the said Central Park as a place of resort, amusement, recreation and exercise; that it was illegal for the defendants to enter into said lease, and that the defendant Gallatin, as commissioner of parks, exceeded his power in executing said lease; and that the erection, construction, alteration and occupancy of the Arsenal Building will substantially damage and injure the property of the city of New York, and will damage and injure the said Central Park in its use and enjoyment by the taxpayers, citizens and public of the city of New York. The lease recites it is made "in order to promote and increase the public enjoyment, use and convenience of the public park known as Central Park." The lease further provides "that the said building, after it shall have been altered and repaired as herein provided for, shall be kept open and accessible to the public hereafter free of all charge throughout the year, five days in each week, one of which shall be Sunday afternoon, and also for two evenings in each week, within such hours and subject to such rules and regulations as may be determined by the trustees of said institute; and also that on the two days in each week during which said building may remain closed to the general public it shall be open and accessible to students, schools, and societies organized for the purpose of promoting means and methods of safety and sanitation within such hours and subject to such rules and regulations as may be determined by the trustees of said institute." The defendant Safety Institute of America was formerly known as the American Museum of Safety, but on November 22, 1918, by order of this court, the said name American Museum of Safety was changed so that said corporation defendant is now named the Safety Institute of America. The American Museum of Safety, now the Safety Institute of America, was incorporated by chapter 152 of the Laws of 1911, which, by section 2 thereof, defines its objects as:

"Sec. 2. The objects of the corporation hereby created are to study and promote means and methods of safety and sanitation and the application thereof to any and all public or private occupations whatsoever, and of advancing knowledge of kindred subjects; and to that end to establish and maintain a museum, library and laboratories, and their branches wherein all matters, methods and means for improving the general condition of the people as to their safety and health may be studied, tested, and promoted, with a view to lessening the number of casualties and avoiding the causes of physical suffering and of premature death, and to disseminate the results of such study, researches and test by lectures, exhibitions and other publications."

Chapter 466, Laws of 1914 (Greater New York Charter, § 244a). authorizes the board of estimate and apportionment of the city of New York to appropriate annually—

"Such sum as it may deem proper, not exceeding fifty thousand dollars, for the keeping, preservation, and exhibition of safety devices and means and methods of safety and sanitation in the building or any part thereof in the city of New York now or hereafter occupied by the American Museum of Safety."

The lease prohibits any commercial transactions or gainful pursuits upon the demised premises. No rent is reserved in the lease, but the tenant is obligated to expend not less than $50,000 in alterations, repairs and improvements upon the demised premises according to plans subject to the park commissioner's approval. The tenant's covenants comply with the requirements of section 244a of the charter, the lease providing:

"The said building

shall be kept open and accessible to the public hereafter free of all charge throughout the year, five days in each week, one of which shall be Sunday afternoon, and also for two evenings in each week, within such hours and subject to such rules and regulations as may be determined by the trustees of said museum; and also that on the two days in each week during which said museum may remain closed to the general public it shall be open and accessible to students, schools, and societies organized for the purpose of promoting means and methods of safety and sanitation within such hours and subject to such rules and regulations as may be determined by the trustees of said museum."

The public functions performed by the tenant are sufficiently established by its objects, stated in chapter 152, Laws of 1911, the authority to the city of New York to appropriate money for the corporate purposes, and the covenants in the lease requiring the premises to be accessible to the public. The argument of the plaintiff is based on his assumption that any use of the lands included in Central Park for purposes other than playgrounds or resting places, is illegal; in other words, that a park should consist solely of trees and grass. It is well established that park lands may be put to many uses without violation of law. The laws under which Central Park was acquired and amendatory acts thereto provided for the establishment and maintenance within the limits of the park of museums, zoological or other gardens, collections of natural history, observatories or works of art. Laws of 1859, c. 349, and acts amendatory thereto. This provision has been carried into the Greater New York Charter. Greater New York Charter, §§ 613, 621, 622.

The decisions of the courts of this state have recognized that the establishment of a restaurant in a public park is a proper use of the park property. Gushee v. City of New York, 42 App. Div. 37, 58 N. N. Supp. 967: Gredinger v. Higgins, 139 App. Div. 606, 124 N. Y. Supp. 22. It has also been recognized that the use of park property for horticultural gardens and for instruction and recreation of the public is a proper use. International Garden Club, Inc., v. Hennessy, 104 Misc. Rep. 141, 172 N. Y. Supp. 8. The acts and decisions above referred to fully establish that educational features as well as provision for the health and comfort of the public are proper attributes

Sup. Ct.) FREVERT MACH. CO. V. HOLLANDER MACH. CO.

(178 N.Y.S.)

of a public park. The city of New York has authority, under the charter, to establish the museum proposed to be maintained by the defendant Safety Institute of America, and to utilize the Arsenal Building for that purpose, and this authority exists, whether the title to Central Park is held by the city in its capacity, as an agency of the state, or as a private owner. What the city can do itself it can do through the legally constituted corporation created by the Legislature for that purpose. Gushee v. City, supra. The complaint does not allege that the Arsenal is to be used for any purpose other than that expressed in the lease. Such a use is within the statutory provisions creating Central Park, and therefore the plaintiff's cause of action fails. The motion for judgment on the pleadings dismissing the complaint because it fails to state a cause of action is granted and the complaint dismissed.

Judgment accordingly.

(108 Misc. Rep. 168)

FREVERT MACHINERY CO. v. HOLLANDER MACHINERY CO. et al. (Supreme Court, Special Term, New York County. July, 1919.)

1. TRADE-MARKS AND TRADE-NAMES 58-IMITATION OF TRADE-MARKS AND LABELS RESTRAINED.

Where design of plaintiff's trade-mark on new and secondhand machinery was identical with defendants' trade-mark, on secondhand machinery adopted over ten years later, and court is satisfied that the devices used are identical and that the character of type, words used, and arrangements of words are almost identical in both trade-marks, plaintiff is entitled to restrain defendants, its competitors, from using any imitation of its trade-mark and label.

2. TRADE-MARKS AND TRADE-NAMES 57-SIMILARITY NO LESS OBJECTIONABLE BECAUSE NOT EXACT COPY.

Though there are differences in names, etc., the similarity between plaintiff's earlier trade-mark and defendants' trade-mark is no less objectionable because its separate features, when examined in detail, are not found to be copies of corresponding features of plaintiff's trade-mark. 3. TRADE-MARKS AND TRADE-NAMES 57-TEST OF INFRINGEMENT WHETHER ORDINARY PURCHASER WOULD BE DECEIVED.

It is not necessary, to constitute infringement, that every element of a trade-mark be appropriated, or that trade-mark be completely copied ; the test being whether, taking into account the resemblances and differences, the former are so marked that the ordinary purchaser is likely to be deceived thereby.

4. TRADE-MARKS AND TRADE-NAMES 57-PROOF THAT ANY ONE HAD BEEN DECEIVED UNNECESSARY.

It is no defense to a motion to enjoin use of any imitation of plaintiff's trade-mark and label, etc., that there is no proof that any one had been deceived by the similarity in the two trade-marks; liability to deception being sufficient ground for injunction.

Motion by the Frevert Machinery Company against the Hollander Machinery Company and others for an injunction. Motion granted, Jay Noble Emley, of New York City, for the motion. David P. Siegel, of New York City, opposed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

LUCE, J. [1] This is a motion "for an order restraining the defendants, their servants and agents, from placing or causing to be placed upon their tools and machinery any imitation of the plaintiff's trade-mark and label," etc. Plaintiff and defendant are both in the same line of business, with the exception that plaintiff deals in both new and secondhand machinery, whereas defendant deals solely in secondhand machinery. It appears that plaintiff's trade-mark was adopted in 1907, and that the trade-mark of defendant was adopted by it about 6 months ago. The papers before the court show that the plaintiff and its predecessor in interest have extensively advertised the said trade-mark through catalogues and otherwise through the mails for a great number of years, and its trade-mark is generally known to the machinery trade. It also appears that the plaintiff has had manufactured for it and sold under its own name and trade-mark hand power traveling cranes and polishing machines, and that all machines. and tools sold by it have borne this trade-mark. By the affidavit of one Cotton, a customer of plaintiff's, it appears:

"My sole guidance in buying machinery, either new or secondhand, is by reason of the Frevert Machinery Company trade-mark, and I am not primarily concerned with the name or make of the machinery. In fact, I have bought machines irrespective of the maker, simply because the trade-mark of the Frevert Machinery Company appeared on the machinery and tools."

In the affidavit of one Robidoux, another customer of plaintiff, it is said:

"Whenever I need machinery I am guided almost entirely by the recommendations of the Frevert Machinery Company with reference to my needs, and never buy anything on the strength of the name of the maker alone. If the Frevert Machinery Company's trade-mark is upon a machine, I am satisfied to buy same from the plaintiff herein, either new or secondhand."

Plaintiff alleges, and the proof shows, that it does sell its tools or machines because its trade-mark is affixed thereto, and that many of its customers rely entirely upon the plaintiff's recommendations on tools and machines, and plaintiff attaches its trade-mark to the machines and tools sold by it. Catalogues are submitted showing machines that plaintiff sells under its trade-marks. Plaintiff submits proof that its sales manager was deceived into believing that defendant's trade-mark was that of the plaintiff. Defendant admits that its attention was called to the similarity in design of the two trade-marks, and that

"It agreed to destroy the name plates on hand, provided plaintiff paid it the value thereof, to wit, $30, and to discontinue using same, for, rather than become involved in a lawsuit the defendant was willing to discontinue the particular design, since same meant nothing in a business way."

Defendant's president admits in his affidavit that the design of the defendant's trade-mark is identical with that of the plaintiff. A comparison of the two trade-marks in question shows that the devices used are identical, and the character of type, words used, and their arrangement are almost identical.

[2] True, there are differences in names, etc.; but the similarity. between the two trade-marks is none the less objectionable, because

Sup. Ct.)

FREVERT MACH. CO. V. HOLLANDER MACH. CO.
(178 N.Y.S.)

its separate features, when examined in detail, are not found to be copies of the corresponding features in plaintiff's trade-mark. See Luyties Bros. v. Zimmermann & Co., 149 App. Div. 542, 133 N. Y. Supp. 997; Kalish, Inc., v. Harper, 184 App. Div. 684, 172 N. Y. Supp. 470.

[3] It is not necessary, to constitute infringement, that every element of a trade-mark be appropriated, nor that the trade-mark be completely copied. A proper test is whether, taking into account the resemblances and differences, the former are so marked that the ordinary purchaser is likely to be deceived thereby. In the case at bar it is admitted that the design of plaintiff's trade-mark has been copied by defendant, or at least that the designs are identical, and a comparison of the two trade-marks convinces the court that the character of the lines and the arrangement of the words are identical. Plaintiff's trade-mark is a fanciful and arbitrary one, and the use of an almost identical trade-mark by a competitor in trade for similar tools and machinery is a very obvious invasion of plaintiff's rights. It is no defense to say that the plaintiff has no trade-mark in the words "lathes, shapers, millers, planers, tools." Plaintiff does not claim to have a trade-mark in these words. Plaintiff's trade-mark is in the design, and the words are merely incidental. Defendant may use the same words, provided it does not make use of the same design.

[4] Defendant makes much of the point that no one has been shown to have been deceived by the similarity in the two trade-marks. Plaintiff shows that its sales manager was so deceived. However, it is no defense to a motion for an injunction that no such proof was submitted. As was said in T. A. Vulcan v. Myers, 139 N. Y. 364, 367, 34 N. E. 904, 905:

"No evidence was given or offered to show that any person had actually been deceived by the imitation of the plaintiff's trade-mark, and we think that none was necessary for the maintenance of the action. It is the liability to deception which the remedy may be invoked to prevent."

In Kalish v. Harper, supra, the court said:

"The motion for an injunction was denied upon the ground that there was no proof of deception. No such proof is necessary. Although the complaint alleges that the simulation of plaintiff's trade-mark tended to and did result in deception, the right to an injunction sufficiently appears when it is shown that there has been an unlawful invasion of plaintiff's property right in its trade-mark."

It is the liability to deception and consequent injury which justifies the issuance of an injunction. See German-American Button Co. v. Heymsfeld, Inc., 170 App. Div. 416, 421, 156 N. Y. Supp. 223. Motion is granted, with $10 costs.

Motion granted, with $10 costs.