Opinion
May 15, 1925.
Appeal from Supreme Court of New York County.
Spiro, Abrams Felstiner [ Frank C. Laughlin of counsel; William Felstiner with him on the brief], for the appellant.
Newmark Miller [ Henry S. Miller of counsel; Robert S. Allyn with him on the brief], for the respondents.
The conclusion that defendants intended and now intend unfairly to compete with the plaintiff is irresistible in view of the box adopted by them the first of this year. Descriptively this box is essentially the same as the one that has been used by the plaintiff for the past four years. It is true that one can take these two boxes and point out differences in detail, but it is only in detail that the differences lie. The very differences, however, are earmarked with intent to deceive, as for example: the vertical stripe of defendants' box is of the same color, blend and width, and in the exact position as the diagonal stripe on plaintiff's box; the gold field of the cover of the plaintiff's box is relieved by a black oblong with gold letters above, and white ovals with black letters below; defendants' box, correspondingly, has a black circle with gold letters above and a white oblong with black letters below.
The defendants in opposition to plaintiff's motion have presented numerous affidavits of persons engaged in the sale of hosiery, either as wholesalers, retailers or salesladies, in which the several deponents state that in their opinion the label of the defendants' box is so dissimilar to plaintiff's box that it could not deceive purchasers. It is not claimed that the purchasing public could not likewise take the two boxes side by side and point out the details wherein the labels are dissimilar. Obviously, that is not the test of whether a box label or other symbol used by one tradesman is an infringement upon that of another and whether it will cause confusion among purchasers. The test is whether or not, as has been enunciated in numerous cases, the similarity is such that it would mislead the ordinary observer or purchaser.
We think the plaintiff has made out a prima facie case of unfair competition in respect to the use by defendants of their imitative boxes, and, adapting the language used by this court in Seeman v. Zechnowitz ( 136 App. Div. 937) to the facts here presented, it may be said: It is quite true, as the respondents contend, that an injunction pendente lite will not usually be granted in an action of this character unless the right thereto is made to appear quite clearly. As to the right to enjoin defendants' use of the name "Gold Mark," disassociated from the boxes which defendants have recently adopted, we are unwilling to decide upon the papers now before us. That question may well wait until the trial of the action. As to the boxes, however, we entertain no doubt at all. They are an obvious, palpable imitation of plaintiff's boxes, unquestionably adopted with a view to deceiving purchasers and appropriating plaintiff's trade.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for an injunction granted to the extent of forbidding the use of the boxes now in use by defendants or of any other boxes simulating the boxes in use by plaintiff, leaving all other questions to be determined at the trial.
CLARKE, P.J., DOWLING, McAVOY and MARTIN, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted to the extent indicated in opinion. Settle order on notice providing for the giving of security.