Joseph v. Macowsky

Paterson, J. — This action was brought to restrain the defendant from making or selling any razor having a stamp thereon, or upon the case thereof, showing the words “ Queen’s Own,” or the words “ Queen’s Own Co.”

The plaintiff alleged that he had been for many years importing razors, which he had caused to be manufactured in England; and in order that said razors might become known in the market and easily identified, and their origin known, he had caused each one of them to be stamped upon the “tang,” which is the thick part of the razor blade back of the cutting part, with the words, “ Queen’s Own Co.” He alleged that on account of said trade-mark the razors had become known in the commercial world as the “Queen’s Own” razors, and had acquired great reputation with the public for excellence of quality; that the defendant had been selling razors which were marked in conspicuous letters upon the blade thereof, “ Queen’s Own”; and that the imitations were calculated to deceive those desiring to purchase plaintiff’s razors. The court found that all of the razors offered for sale by the plaintiff have stamped upon the shank on one side the words “ Queen’s Own Co., Sheffield”; that in point of fact the razors are not manufactured by any company or firm known by the name or designation of “ Queen’s Own Co.,” nor manufactured in Sheffield, England; that the defendant has not sold any razor which, by a stamp or general appearance, was designed or calculated to mislead the public as an imitation of the plaintiff’s razors; that “there was a total dissimilarity between them, and apparent to any person upon even the slightest inspection.”

The only question raised on this appeal is as to the sufficiency of the evidence to support these findings of the court.

We cannot say that the findings are not supported by the evidence. It is true, the plaintiff, in his direct [520]examination, testified that the razors were manufactured in Sheffield; but in his cross-examination he admitted that he did not buy them through a Sheffield house; he said he knew they were manufactured in Sheffield only because he purchased them from Harrison Brothers and Houston, all of whose goods were manufactured in Sheffield. He admitted that there was no company in England or in this country known as the “Queen’s Own Co.,” and that he alone constituted the “ Queen’s Own Co.” T. S. Conran, a dealer in cutlery, testified, on behalf of the defendant, that plaintiff told him he purchased the razors from Harrison Brothers and Houston, but did not know who made them. He testified, also, that said firm did not manufacture razors. The credibility of these witnesses was a matter for the •court below to consider and determine, and we have no right to interfere with its decision.