Opinion
Decided October 30th, 1936.
1. Complainant and defendant both sell only to manufacturers of articles into which artificial leather enters. In the process of manufacture the marks of either party are obliterated or concealed, and the sale of the finished article to the jobber, wholesaler, retailer or consumer is on the reputation of the manufacturer, and not on the reputation of complainant or defendant. Held, the name and arrangement of names used by defendant is not such as to cause confusion with that of the complainant.
2. The fact that defendant was organized by a former employe of complainant is immaterial. He had as much right to use the name Oxtex as any third person, as long as the name and mark used was not so near to that of the complainant as to lead customers to suppose that the artificial leather sold by the defendant is the product of complainant.
On appeal from a decree of the court of chancery advised by Vice-Chancellor Bigelow, who filed the following opinion:
"Complainant, Cotex Corporation, has been engaged for a number of years in the manufacture of artificial leather. It registered as a trade-mark the name Cotex with the letters of varying size so as to form an oval. Last fall, one of complainant's salesmen left its employ and organized the defendant Oxtex Corporation, which also makes artificial leather. Defendant stamps on its product the word Oxtex with the `T' enlarged and the head of an ox superimposed. Complainant contends that defendant is unfairly competing with it and infringing its trade-mark. It seeks an injunction.
"The fact that the defendant was organized by a former employe of complainant is immaterial. He had as much right as any third person to use the name Oxtex and of course he had no greater right.
"Defendant cannot lawfully use a name or mark so near the name or mark of complainant as to lead customers to suppose that the artificial leather sold by defendant is the product of complainant. Wirtz v. Eagle Bottling Co., 50 N.J. Eq. 164. Both parties sell only to manufacturers of luggage, automobiles, and other articles into which artificial leather enters. In the process of manufacture, the marks of complainant or defendant are obliterated or concealed, and the finished article is sold to the jobber, or wholesaler, or retailer, or ultimate consumer, on the reputation of the manufacturer and not at all on the reputation of complainant or defendant. The same manufacturer sometimes uses complainant's product and sometimes the artificial leather of one of complainant's competitors. The purchaser has no idea whose artificial leather has been used.
"The question is whether a luggage maker — for example — is at all apt to buy Oxtex artificial leather by mistake, laboring under the impression that he is buying Cotex. The case would be different if sales to the ultimate consumer were involved. International Silver Co. v. Wm. H. Rogers Corp., 66 N.J. Eq. 119, 137; N.K. Fairbanks Co. v. R.W. Bell Manufacturing Co., 77 Fed. Rep. 869; 23 C.C.A. 554.
"The names Cotex and Oxtex are not so similar, in my opinion, as to cause confusion. Likewise, with the appearance of the names as used by the two parties, the one in the form of an oval, the other with the animal head above. The only direct evidence of confusion on the part of a customer is the hearsay testimony of one of complainant's officers that a customer said he thought certain material of defendant had been made by complainant. This is not impressive.
"Finding no infringement of complainant's right, the bill will be dismissed."
Messrs. Lum, Tamblyn Fairlie, for the appellant.
Mr. James E. Reilly, for the respondents.
The decree appealed from will be affirmed, for the reasons expressed in the opinion delivered by Vice-Chancellor Bigelow in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 14.
For reversal — None.