DISTRICT COURT, E.D. NEW YORK
May 23, 1932
CHESEBROUGH MFG. CO., CONSOLIDATED,
GREENBERG et al.
The opinion of the court was delivered by: GALSTON
GALSTON, District Judge.
There seems to me to be no ambiguity in the order of February 17, 1932.
The carton, Exhibit A, attached to the motion papers, is a violation of that provision of the order relating to the trade-mark "Blue Seal," as covered in registration No. 284672, and of the concluding sentence of the order enjoining the defendant "from using on the bottle or other container for petroleum jelly or petrolatum a blue label." Why the defendant adopted a blue seal, after having been ordered to desist from the use of the carton, Exhibit C, can be explained on no other ground than by an attempt to invade plaintiff's registration and good will incident thereto; nor does the Greenberg affidavit carry much conviction in view of the stress made therein on the alleged single instance of the use of the new carton (Plaintiff's Exhibit A). The plaintiff's supplemental affidavits leave no doubt in my mind that there was a rather general distribution of that carton after the entry of the injunction order.
So far as explanation is concerned, the reliance on the advice of the attorney is, of course, no defense. However, it may be noted that, even if such explanation were available as a defense, it nowhere appears that the attorney recommended or approved the use of a blue seal.
The motion is granted, and a fine of $250 is imposed upon the defendant, one-half for the benefit of the plaintiff.
Settle order on notice.