Opinion
July 1, 1969
Order entered May 14, 1969, unanimously modified, on the law and the facts, so as to delete, effective as of the date of the order entered hereon, the provisions of paragraph 3 thereof enjoining defendants-appellants from selling any exercise wheel and as so modified, affirmed, without costs or disbursements. Defendants may not be enjoined from copying and selling an unpatented article, in the absence of trade-mark infringement or unfair competition. ( Sears, Roebuck Co. v. Stiffel Co., 376 U.S. 225, 231; Compco Corp. v. Day-Brite Lighting, 376 U.S. 234, 238.) In the circumstances of this case the interests of justice would be served by an early trial. Accordingly, the calendar clerk is directed to place this cause on the appropriate calendar for immediate trial upon payment by plaintiff of the appropriate fee.
Concur — Eager, J.P., Capozzoli, Tilzer, Markewich and Nunez, JJ.