Opinion
January, 1910.
Shepard, Smith Harkness, for plaintiff.
Henry D. Williams, for defendants.
The facts in this case are somewhat similar to those in the Eliot case. The complaint alleges, as additional facts to those contained in the Eliot case, that the plaintiff entered into the contract with Dr. Eliot, and that in pursuance thereof plaintiff commenced to print and publish the writings so selected by Dr. Eliot in a uniform edition, with three separate styles of binding, under the title of "The Harvard Classics," and since October 13, 1909, has been selling the books so published by it with the trade-mark, "Dr. Eliot's Five-foot Shelf of Books," printed on the outside of all the books; that, prior to the 1st day of December, 1909, the plaintiff had published and sold about 30,000 volumes of the said set of books, inclosed in such wrappers; that plaintiff has invested and expended large sums of money in the preparation, printing, advertising, publication and distribution of said books; that, during the month of June, 1909, plaintiff advertised in "Collier's The National Weekly," a publication having a large circulation, an advertisement describing the proposed publication of said books; that the income derived from the books already published and distributed has been large, while the income from the books not yet published or distributed has promised to be much larger; that plaintiff has also caused a similar advertisement to be published in all the leading magazines in the United States; that the plaintiff caused to be printed a pamphlet of twenty-five pages entitled "Announcement of the Harvard Classics, edited by Charles W. Eliot, LL.D., Dr. Eliot's Five-Foot Shelf of Books, P.F. Collier Son, Publishers;" that said pamphlet was placed in the hands of some 3,000 representatives of the plaintiff for their use in securing subscriptions for said books; that notwithstanding that the words "Dr. Eliot's Five-Foot Shelf of Books" have become descriptive of and are a trade-mark of said books, the defendants have, since November, 1909, with intent to deceive and defraud the public and to damage the plaintiff, advertised in a magazine and a daily newspaper, both having large circulations, that they are preparing and are about to publish a series of ten volumes under the designation of "Dr. Eliot's Five-Foot Shelf of the World's Best Books," and "Dr. Eliot's Five-Foot Shelf of the World's Greatest Books;" that in said advertisement the defendants solicit from the public subscriptions for the said ten volumes for the sum of $4.25. The complaint further alleges that the defendants, seeking unfairly to compete with plaintiff in respect of his enterprise aforesaid, have advertised and offered for sale and published the sets of books heretofore referred to. The affidavit submitted and the correspondence therein referred to show that the defendants had knowledge of the publication by the plaintiff; and the agreement between the defendant Jones and Messrs. Thwing and Beers, referred to in the defendant Jones' affidavit, also shows that the defendants feared that there might be some legal proceeding enjoining them from interfering with the plaintiff in the publication of the books advertised by him. The defendant The Circle Publishing Company consents to the granting of an injunction. There appears to be no doubt that the defendants are seeking by unfair competition or unfair trade to put upon the market a series of books. Although it is not similar in appearance and make-up to the set which plaintiff has published, yet, in adopting the name of "Dr. Eliot's Five-Foot Shelf of Books," the title which plaintiff has advertised extensively for a long while, there is indicated an attempt to deceive the public into buying defendants' publications, believing them to be those published by the plaintiff. While it is conceded by the defendants that their publications are of less value, yet, as their books are offered for sale by subscription, the purchaser will not see the books until they are delivered. Mr. Justice Scott, in Dutton Co. v. Cupples, 117 A.D. 176, says: "Nor, in so flagrant a case as the present, is it necessary to prove that any person was actually deceived by the imitation. It is apparent that there was every probability of such deception, and that is precisely what the law seeks to prevent. (Vulcan v. Myers, 139 N.Y. 364.) Upon the general right of the plaintiff to protective relief we cannot see any reason why the same rule should not be applied to a book that has been applied to a game, or to cigars, or to anything else which is distinguished by a label, or by the distinctive form or style of the package. The decisive fact is that the defendants are unfairly and fraudulently attempting to trade upon the reputation which plaintiff has built up for its books. The right to injunctive relief in such a case is too firmly established to require the citation of authorities." For these reasons the motion for an injunction pendente lite will be granted upon the plaintiff's giving an undertaking in a sum to be fixed upon the settlement of the order.
Motion granted.