Charles R. De Bevoise Co. v. H. & W. Co.

Full title: CHARLES R. DE BEVOISE CO. v. H. & W. CO.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Apr 30, 1905

69 N.J. Eq. 114 (Ch. Div. 1905)

69 N.J. Eq. 114

Opinion

04-30-1905

CHARLES R. DE BEVOISE CO. v. H. & W. CO.

Harry N. Reeves and Jacob L. Newman, for complainant. J. Edward Smith, for defendant.

PITNEY, V. C.

Bill by the Charles R. De Bevoise Company against the H. & W. Company. On rule to show cause why injunction should not issue. Rule discharged.

Harry N. Reeves and Jacob L. Newman, for complainant. J. Edward Smith, for defendant.

PITNEY, V. C. This is a dispute over the right to use the word "brassiere" for the purposes of trade. The complainant company asserts its right to the exclusive use of that word as descriptive of an article of wearing apparel which it manufactures in large quantities. The defendant disputes that right. The article in question is described by complainant, and that description is acquiesced in by the defendant, as "a combined corset cover and bust supporter." It is a close-fitting, armless jacket, reaching in a narrow band over the shoulders, and opening at the back. There is no assertion or proof that the article in question is a new invention of complainant. There is no charge or proof that the article manufactured by defendant corporation is an attempt to imitate that manufactured by complainant corporation. There is no distinguishing mark on either. Each article is put up in a small paper box, and on the end of the box containing that manufactured by the complainant are printed the words "De Bevoise Brassiére," together with the size and style numbers, and on the end of the box containing that manufactured by the defendant are printed the words "H. & W. Brassiere," together with the size and style numbers. In all the advertising circulars and trade journal insertions the same distinction is maintained. There is no charge or attempt to prove that the defendant is seeking or attempting to put its goods on the market as goods manufactured by the complainant. In point of fact, the defendant, as between the two, was the first to manufacture ladies' wear, including the article in question and other articles of that class. Mr. De Bevoise, the president and principal proprietor of complainant, was formerly in the employ of defendant corporation, and left its employ to promote the complainant corporation. The issue, then, is narrowed down to the right to the exclusive use of the word "brassière." There is no satisfactory proof on the part of the complainant as to bow long it has used that word. The affidavit says "for a long time," but that is altogether too indefinite for judicial action. The affidavit on the part of the defendant says that Mr. De Bevoise left its employ about a year ago. The complainant's case rests solely upon its first having adopted the word "brassière" as the name for the article in question. This is disputed by defendant, who asserts that it was long ago used in France. But admitting that it was first used by complainant in the United States, let us see whether complainant can stand on that claim. The word "brassière" is a familiar French word, foundin all the dictionaries, and means simply "brace," as applied to an article of woman's wear, but includes also the idea of restraint. In the standard Rrench dictionaries "restraint" is given as a secondary meaning; as a "leading string," indicating "restraint"—as an illustration, "être en brassière," "to be under constraint." Of course, the word "braces," in common parlance, as applied to men's wear, is a synonym for "suspenders." But it is admitted by counsel for complainant in his written argument that "brassière" means a "stay," "brace," or "girdle." Each of those articles is included in the description of the article given in complainant's bill, namely, "combined corset cover and bust supporter." It is then a singularly appropriate name for the article in Question, and has been so employed for a long time in Prance, according to the affidavits. It is so printed on the ends of the boxes containing the same goods sold by Altaian & Co., who keep shops both in Paris and New York. It seems to me that this statement of the case decides it. It is common knowledge that it is quite usual for dealers in articles of wear to designate such articles by their French names. So with dishes served in restaurants, and I can find no foundation in reason or authority for a party to appropriate to himself for his own exclusive use the name of an article which he manufactures and sells. To so hold would he tantamount to holding that if Mr. Dunlap should choose, in his advertisements and billheads, to name the hat which he sells in its various forms, "The Dunlap Chapeau," no other manufacturer or dealer in hats could name his hat "The Smith Chapeau" or "The Brown Chapeau," and that any shoe dealer could appropriate the name "Soulier" to his manufacture of shoes, and every tailor the word "culotte" to his manufacture of trousers, and a glove manufacturer the word "gant."

The order to show cause is discharged.