Opinion
December 4, 1936.
In an action to restrain defendant, respondent, from using in trade the name Wayne County or Wayne, plaintiff appeals from so much of the judgment as denies an injunction completely restraining such use in connection with beverages and food products, the court in its decree having permitted defendant to use the name Wayne County on condition that it clearly indicate that the products sold or advertised by the defendant, respondent, were not products of the plaintiff, appellant. Judgment modified so as to provide that the defendant shall be forever enjoined and restrained from using the name Wayne County or Wayne in any business or trade transacted, conducted or done by it, in or in relation to any beverage or any food product, and from using either of said names in advertising such business or trade, or in advertising any beverage or any food product; and as so modified affirmed, in so far as an appeal is taken therefrom, with costs to the appellant. Findings of fact inconsistent herewith are reversed; conclusions of law inconsistent herewith are disapproved; new findings and conclusions will be made. We are of opinion that plaintiff is entitled to all the relief demanded in the complaint without regard to whether or not there is actual competition between the parties in relation to their respective products. ( Forsythe Co., Inc., v. Forsythe Shoe Corp., 234 App. Div. 355; modfd. and affd., 259 N.Y. 248; Tiffany Co. v. Tiffany Productions, Inc., 147 Misc. 679; affd., 237 App. Div. 801; affd., 262 N.Y. 482; Yale Electric Corporation v. Robertson, 26 F. [2d] 972.) Lazansky, P.J., Young, Hagarty, Johnston and Taylor, JJ., concur. Settle order on notice.