CRAVENETTE CO. v. BENJAMIN et al.

CRAVENETTE CO. v. BENJAMIN et al. (Circuit Court, S. D. New York. November 28, 1900.) Trade-Marks — Suit for Infringement — Preliminary Injunction. In a suit for infringement of a trade-mark, complainant is entitled to the continuance of a temporary restraining order, where it appears that in numerous instances defendants have used boxes marked with such trade-mark for goods not made by complainant, although such use may have been through error, and not intentional. • In Equity. Soil for infringement of trade-mark. On motion to continue restraining order. Albert Stiekriey and Samuel Ordway, for the motion. William A. Jenner, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. Irrespective of,all other questions in the case, the number of instances in which coats not made of complainant’s goods have been packed in boxes marked with complainant’s trade-mark is so great that I should not be warranted in refusing to continue the restraining order already in force. Against even the careless oversight of some subordinate the complainant is entitled to be protected more abundantly than by defendants’ instructions to their employés, which, according to defendants’ own admissions, have not proved sufficient in the past; especially so in view of the errors which by the later documents and affidavits are shown to have crept into the bills, and of the cards containing samples of both kinds of goods which were sent out, although those in charge of that department apparently contemplated the use of separate sample cards for imported and domestic goods. The suit being for infringement of trade-mark, and not for unfair competition merely, the intent is not of so much importance. The restraining order is continued until final hearing.