of the defendant corporation, and that the label of the defendant as affixed thereto, was taken for a union label for some time and until the fact that it was not was called to the attention of said Industrial Union of Marine and Shipbuilding Workers of America, then its Constitution was reprinted by the shop having chapel #15 and employing members of Typographical.
The defendant, of course, contends that fraudulent intent is absent, but no actual fraudulent intent need be shown where the necessary and probable tendency of the defendant's conduct is to deceive the public and pass off its goods or business as and for that of Typographical. Hilton v. Hilton, 90 N.J.Eq. 564, at page 567, 107 A. 263, at page 264; A. Hollander & Son, Inc., v. Philip A. Singer & Bro., Inc., 119 N.J.Eq. 52, 180 A. 671, at page 676.
The defendant is guilty of trademark infringement and unfair competition and the prayer of Typographical for an injunction as to each is granted.
One further point should be mentioned here. A trademark case is in fact a case of unfair competition and the law of trademarks is only a part of the broader law of unfair competition. United Drug Company v. Theodore Rectanus Company, 248 U.S. 90, 39 S. Ct. 48, 63 L. Ed. 141. An action for unfair competition does not necessarily involve the violation of any exclusive right to the use of a word, mark or symbol. Croft v. Day, 7 Beav. 84. Typographical's label may be considered under two aspects: (1) As a union label per se, and (2) as a trademark applied to the certain named products for which it has been registered in the United States Patent Office. Even if this court were to consider Typographical's label solely as a union label and not as a trademark, Typographical is entitled to equitable relief. It is no doubt true that a union label considered as such does not answer to the definition ordinarily given of a technical trademark because it does not indicate with any degree of certainty by what particular person or firm the products to which it may be affixed were manufactured or serve to distinguish the goods of one manufacturer from the goods of another manufacturer. In these respects the union label, considered merely as such, lacks the characteristics of a valid trademark. ( Carson v. Ury et al., C.C.., 39 F. 777, 779.) In the case at bar as in the case of Carson v. Ury, supra, Typographical seeks to restrain the defendant from perpetrating a fraud. Even when a trademark was not infringed or involved, courts of equity have granted injunctions on more than one occasion against the use upon goods of certain marks, labels or wrappers where the evident design of such use was to deceive the public by concealing the true origin of the goods. McLean v. Fleming, 96 U.S. 245, 24 L. Ed. 828; Croft v. Day, supra. As was said by the court in Carson v. Ury, supra [39 F. 779]: "No valid reason can be assigned why the principle which underlies these decisions does not entitle the complainant to relief." In this case Typographical has a right to its union label and has a right to the benefits that normally and properly flow from the use of such label. Defendant will not be permitted to divert to itself such rights and benefits.
Typographical also seeks an accounting for the profits derived from the sale of the goods bearing the infringed label. However, in the opinion of this court, the difficulty and expense of an accounting would be disproportionate to the amount recoverable. The court in Ludington Novelty Co. v. Leonard et al., 2 Cir., 127 F. 155, 157, covered the problem here when it stated: "The master would be involved in an inextricable tangle from which it will be impossible to emerge with a substantial recovery based upon a rational rule of damages."
Damages for infringement are not mandatory under the statute. The Trademark Act of 1905, 15 U.S.C. § 99, 15 U.S.C.A. § 99, authorizing recovery of damages for trademark infringement, does not require an accounting and recovery of damages where there are laches. Golden West Brewing Co. v. Milonas & Sons, Inc., 9 Cir., 104 F.2d 880.
An accounting would be ordered if it did not appear:
1. Typographical for a long time has known what defendant has been doing, and did not take any legal steps as far as the record herein appears, until it filed its complaint in this cause.
2. The testimony herein indicates that neither upon the existing record, nor upon any record before a Master, could there be a substantial recovery.
3. The duty to account in a case such as this is ordinarily a matter of right and of course, and the difficulty of stating same is no excuse, yet all things considered, it seems inadvisable to permit further time and effort to be expended.
Conclusions of Law.
This court finds the defendant, its officers, agents, servants, members and employees imitated and simulated Typographical's label, and that Masters label is an infringement of the Typographical label, and that Masters, its officers, agents, servants, members and employees have competed unfairly with Typographical.
The defendant, its officers, agents, servants, members and employees are guilty of trademark infringement and unfair competition and the prayer of Typographical for an injunction as to each is granted.
An accounting for the profits derived from the sale of the goods bearing the infringed label is denied, because the Master would be involved in an inextricable tangle from which it would be impossible to emerge with a substantial recovery based upon a rational rule of damages.
An order in accordance with the findings of fact and conclusions of law should be presented.