people. It is the misleading of those who may buy the product which concerns the court as a major factor in unfair competition cases.
The Pinaud hair tonic is not sold in bulk, and there is testimony here which convinces me that the defendants have manufactured and sold a hair tonic closely resembling Pinaud's with the intention and purpose of selling the same to the barber trade in bulk, and at the same time encouraging its use in refilling empty Pinaud bottles. Against such practice the plaintiff is entitled to relief, since it misleads and constitutes unfair competition.
As to the plaintiff's product known as "Lilas de France" or "Lilac Vegetal," the plaintiff or its predecessors in title first introduced the same in the United States in the year 1890, and since that time there have been no substantial changes in either the label, the bottle, or its contents. Large sums of money have been spent in advertising this product nationally, and it also, by reason of its distinctive elements as presented for sale, coupled with the effect of advertising, has found a place peculiar to itself in the trade, but it cannot be said that the exclusive position thus obtained is dependent on anything more than the label and the Pinaud name, since it appears that one Paul Westphal, a New York perfumer, produced and sold a lilac toilet water of the same color and very much of the same odor in the year 1881. It was sold in bottles like those of plaintiff and named "Lilac de Perse," and a substantial amount of business in this product was enjoyed by Westphal. It follows that plaintiff, not being the first user, has no exclusive right to the use of the bottle or the color or odor of the liquid either singly or in combination and is entitled only to protection against an unfair use of the label bearing upon its effect upon the eye of the average purchaser.
On motion for preliminary relief herein, it appeared conclusively that the defendants were engaged in a premediated endeavor to steal the benefit of the plaintiff's good will. Defendants' hair tonic and toilet water each approached Chinese copies of those of plaintiff's, and the preliminary injunctions then granted will be made permanent.
A decree will be entered in favor of the plaintiff in conformity with the conclusions herein arrived at.
© 1992-2004 VersusLaw Inc.