The Good Hope Company ». The Railway Barb Fencing Company.

The Code of Civil Procedure of this State provides (§ 432,) that an action may be commenced against a foreign corporation, by delivering a copy of the summons to the president, secretary or treasurer thereof. As construed by the highest Court of the State, this statute permits effectual service to be made, although the officer served is not here in his official capacity, or in the business of the corporation. (Pope v. Terre Haute Car Co., 87 N. Y., 137.) Such a law was characterized, in Moulin v. Trenton Ins. Co., (4 Zabriskie, 222, 224,) as "so contrary to natural justice, and to the principles of international law, that the Courts of other States ought not to sanction it."

It is quite clear, that service of process upon an agent of a foreign corporation, while merely casually present in the State, is not equivalent to a personal service upon an individual, in conferring jurisdiction upon a Court to render a personal judgment; and such a judgment would be treated as void for want of jurisdiction, by other tribunals than those of the State where it was obtained. The authorities may be found in the note to § 522 of Morawetz on Private Corporations. The subject has recently been considered by the Supreme Court of the United States, in St. Clair v. Cox, (106 U. S., 350,) and Mr. Justice Field, speaking for the Court, says: "We are of opinion, that, when service is made within the State, upon an agent of a foreign corporation, it is essential, in order to support the jurisdiction of the Court to render a personal judgment, that it should appear somewhere in the record," "that the corporation was engaged in business in the State."

A corporation ought not to be deemed "found," within the meaning of § 739, unless it is so far constructively present at the place where its agent is served with process, that a judgment against it would be respected everywhere, and be given full force and efficacy in other jurisdictions. When a corporation is not engaged in business in this State, there is no room for implying its consent to come here to litigate with a citizen of this State or of a foreign State.

The Glen Cove Manufacturing Company v. Ludeman.

In this case the president of the defendant was here in his representative character, but the corporation had never been practically engaged in business here. It had made purchases here occasionally, but it could have made them by correspondence, as well as by the presence of its agent here. If the purchases had been made by correspondence, it could be as logically urged, that the corporation was engaged in business here, as it can be now. Instead of writing, its agent came here in person. As it has never kept an office here, or carried on any part of its business operations here, or been engaged in any business here which required it to invoke the comity of the laws of the State, it was not "found" here for the purpose of being sued.

The motion to vacate the service of the process is granted.

Aaron P. Whitehead, for the plaintiff.

William F. Upson, for the defendant.

THE GLEN COVE MANUFACTURING COMPANY

vs.

HARM H. LUDEMAN. IN EQUITY.

The plaintiff registered in the Patent Office two trade-marks, under the Act of March 3d, 1881, (21 U. S. Stat. at Large, 502), one for the word "Maizena,” and the other for an allegorical picture, representing the cultivation of corn, and the preparation of flour therefrom by Indians, both to be applied to cornflour, by printing on the packages thereof. The defendant used on corn-starch the word "Maizharina," with the picture of a man carrying a quantity of maize in his arms. Each put up his article for sale in foreign countries. The plaintiff had a good common law title to its trade-marks, prior to any title of the defendant: Held, that the defendant, by the use of his word and picture, in connection with the similarity of his packages in form, size, color, printing, and other characteristics, had violated the plaintiff's right to the trade-mark for the word, under the statute

The Glen Cove Manufacturing Company v. Ludeman.

Although the defendant had registered, under the same Act, the word "Maizharina," as a trade-mark, that gave him only a presumptive right to use it.

(Before Wallace, J., Southern District of New York, January 2d, 1885.)

WALLACE, J. The complainant moves for a preliminary injunction, restraining the defendant from violating its right to the exclusive use of two trade-marks, used by it in commerce with foreign nations, and applied to a preparation of corn-flour for food, both of which it procured to be registered. in the Patent Office, December 6th, 1881, under the provision of the Act of Congress, of March 3d, 1881 (21 U. S. Stat. at Large, 502.) The first consists of the word "Maizena," and the second is an allegorical picture, representing the cultivation of the corn, and the preparation and cooking of the flour by Indians. Both are applied by printing upon the packages in which the corn-flour is put up for sale.

The defendant is the registered owner of a trade-mark for corn-starch, which consists of the word "Maizharina," accompanied with a pictorial representation of a man carrying a quantity of maize in his arms, registered in the Patent Office, December 5th, 1882.

Both parties are manufacturers here of the corn flour, and put it up here for sale in foreign countries, and both use their respective trade-marks upon the packages containing the flour or starch in the same way. The complainant, or its predecessor in business, was the originator of the trade-marks it has registered, had used them for many years to designate its corn-flour, and bad acquired a good common law title to them. before the defendant undertook to employ either the word or the picture registered by him.

It is quite obvious that the defendant's word and picture, as applied by him to the packages of his corn-flour put up for exportation to Germany and Cuba, in connection with the similarity of his packages, in form, size, color, printing, and other characteristics, to the complainant's, are well calculated to lead purchasers to confuse the identity of the products of the respective parties. As thus used by him, it

The Glen Cove Manufacturing Company v. Ludeman.

would seem clear that he has purposely assimilated the complainant's devices for distinguishing its product from those of others; and, if the case turned on the principles which obtain ordinarily, in equity, when the use of a common law right of property in a trade-mark is the subject of controversy, it would be the duty of the Court to order an injunction. Granting that the word and picture of the defendant are different from those of the complainant, a Court of equity would enjoin the defendant from using them with such accessories as would lead purchasers to confound the one with the other, not because of the infringement of the complainant's trade-mark, but because the defendant would not be allowed, by any deceitful practice, to impose upon the public, to the prejudice and injury of the complainant.

But, both parties are citizens of this State, and the jurisdiction invoked is, therefore, founded solely on the Act of Congress for the protection of trade-marks, and can only be exercised according to the statute which invests the Court with an authority to hear the controversy. The complainant is here upon his statutory title to enforce his statutory rights in the enjoyment of his trade-marks; and the single question is, therefore, whether these have been invaded. If the defendant has appropriated either of these trade-marks, the complainant, as the party aggrieved, by the language of the Act, (section 7), "shall have his remedy according to the course of equity, to enjoin the wrongful use of such trade-mark."

The complainant's trade-mark in the picture has not been infringed. There is such a substantial dissimilarity between this picture and that used by the defendant as to eliminate from the case any theory of a colorable imitation. Whether its trade-mark in the word "Maizena" has been appropriated by the defendant's use of the word "Maizharina" is a more doubtful question. Although the defendant uses the word "Maizharina" upon the packages of his corn-flour put up for the German market, it does not follow that the article will be sold exclusively in that market, and the tendency of the word to mislead purchasers of the article into the belief that it is

The Glen Cove Manufacturing Company ". Ludeman.

the complainant's product does not depend solely upon the inquiry whether it may mislead German purchasers. The defendant's act is committed here, and whether it is a wrong or is justifiable must be ascertained upon the principles of our jurisprudence and not upon those of the law of Germany. Unless the complainant's trade-mark is used on goods intended to be transported to a foreign country, by the terms of the Act of Congress, the Court can take no cognizance of the wrong in a suit between citizens of the same State (section 11). If it is so used, the Court will not be concluded by the result of an inquiry whether it is used with an intent to mislead purchasers in the country where the goods are to be ultimately sold, because the goods may be sold here or in some country other than the one where they are to be ultimately sold, and the Act of Congress contemplates a complete protection to the right which it creates.

If the decision were to depend solely upon the question of a substantial similarity in sonorous properties between the word used by the complainant and that used by the defendant, decisions in analogous cases furnish sufficient authority for granting an injunction. Thus, the word "Cocoine" has been held to be an infringement of a trade-mark in the word "Cocoaine," (Burnett v. Phalon, 3 Keyes, 594;) "Bovina" of the word "Boviline," (Lockwood v. Bostwick, 2 Daly, 521;)" Apollinis" of the word " Apollinaris," (Actien v. Somborn, 14 Blatchf. C. C. R. 380;) "Holsteter" of the word "Hostetter," (Hostetter v. Vowinkle, 1 Dillon, 329.)

The rule is well settled, that, to entitle the proprietor of a trade-mark to relief against an illegal appropriation, it is not necessary that the imitation should be so close as to deceive persons seeing the two marks side by side; it is sufficient if there is such a degree of resemblance that ordinary purchasers, using ordinary caution, are likely to be deceived.

But, the question whether the defendant has colorably imitated the complainant's trade-mark is not to be solved merely by considering the resemblance between the words themselves. If the defendant has dressed his word in such VOL. XXIII.-4