In re Stephenson 147 N.Y.S. 787, 85 Misc. Rep. 145

(85 Misc. Rep. 145)

In re STEPHENSON.

(Supreme Court, Appellate Division, Third Department.

May 21, 1914.)

Injunction (§ 223*)—Violation—What Constitutes.

Where defendant, for the protection of plaintiff, was enjoined from manufacturing or offering for sale belt dressing in bar form in either yellow or red wrappers, it was not a violation of the injunction for defendant to manufacture and offer for sale dressing in oval packages with light pink wrappers with blue printing.

[Ed. Note.—For other cases, see Injunction, Cent. Dig. §§ 448-473; Dec. Dig. § 223.*]

Appeal from Special Term, Albany County.

Petition by the Stephenson Manufacturing Company to punish Samuel T. Stephenson for violation of an injunction. From an order denying the motion, petitioner appeals.

Affirmed.

*788The opinion of Chester, J., at Special Term, is as follows:

The Stephenson Manufacturing Company has secured a judgment restraining the defendant Samuel T. Stephenson “from manufacturing, advertising, offering for sale, or selling a bar belt dressing either in the form of a cylindrical bar or in any form similar to packages of the following description, viz.: ‘Cylindrical bars about 10% inches in length and 1% inches in diameter’ ”— and “from manufacturing, advertising, selling or offering for sale a bar belt dressing in wrappers, bearing the yellow or red colors or any shade of either.” The judgment containing this injunction was obtained after the trial of the action before the court.

On the trial questions of the right of the defendant to use the word “Stephenson” and the words “Stephenson’s Bar Belt Dressing,” upon the packages containing the dressing, were closely litigated. On these issues the defendant was successful, and he was not restrained in the judgment from the use of ' his own name in conducting this business. The purpose of the action and of the injunction was to prevent unfair competition between the parties with respect to the commodity in question. The packages containing the commodity prepared by the petitioner, the plaintiff in the suit, were cylindrical in form, were inclosed in yellow wrappers having red printing thereon and were 10% inches in length and 1% inches in diameter. The plaintiff was seeking in the suit to prevent the defendant from marketing his commodity in that form, so as to deceive the unwary purchaser into the belief that he was procuring the commodity manufactured by the plaintiff.

It is claimed here that the defendant has willfully violated the injunction, and the petitioner asks that he be punished as for a contempt of court for such violation. The defendant denies that he has willfully or in any other way violated the injunction. It appears that since the injunction he has been manufacturing and selling his commodity done up in packages of an oval shape with two sides distinctly flattened and being from a half to three-quarters of an inch longer than the petitioner’s packages. They were about 2 inches thick upon one diameter and 1% inches thick upon a diameter at right angles with the first measurement. They, were done up in wrappers having light pink covers with blue printing upon them.

The petitioner insists that an oval package is a cylindrical one and that the light pink paper is a shade of red, and therefore that the defendant has been guilty of a violation of the injunction. I am unable to agree with this claim in either respect. The packages are so dissimilar in appearance that they are not calculated to deceive an unwary purchaser. Counsel on both sides have exhausted the definitions found in the dictionaries and encyclopedias in an effort to show on the one side that under these definitions a package with oval or elliptical ends is one cylindrical in form and that light pink is a shade of red, and oh the other to show the contrary. I need not take the time to review the numerous definitions brought to my attention. It is sufficient to say that none of them convinces me, within the meaning and purpose of the injunction, that an oval or an ellipse with flattened sides is a cylinder or circle or that pink is red or a shade of red.

I should not on this application enlarge by construction or implication the provisions of the injunction beyond its express terms, in order to hold the defendant guilty of a violation thereof. His conduct must be measured by the terms of the injunction as it is and having in view the purpose for which it was made. With this in viqw it is apparent that there has been shown no willful intent on the part of the defendant to violate the injunction. On the contrary, since the injunction the defendant has modified his packages to make them altogether dissimilar from those he formerly made and from those made by the petitioner. He has changed their size and shape, as well as the color of the wrapper and of the printing thereon, so that no one could be deceived into the belief that his packages were the ones made by the petitioner.

Dor these reasons the motion is denied, with $10 costs.

Argued before SMITH, P. J., and KELLOGG, LYON, HOWARD, and WOODWARD, JJ.

*789Countryman, Nellis, Du Bois '& McDermott, of Albany (Merwin H. Nellis, of Albany, of counsel), for appellant.

Lester T. Hubbard, of Albany., for respondents.