167 Misc. 856 | N.Y. Sup. Ct. | 1938
In this action an injunction is sought in restraint of alleged unfair competition.
Whether the close identity of the parties’ yarn is the result of defendant’s willful and malicious simulation, as claimed by plaintiff, or of mere coincidence resulting from the operation of the minds of the merchants, seems hardly necessary of determination. Perhaps such minds, spurred on by the necessity of anticipating the requirements of coming seasons, may conceive and in the process of creative genius produce either the same or an identical twin article. It may be due to the association, environment and training of defendant’s identical designer or creator who started with plaintiff as a boy and was with it for eleven years oi the twenty-nine he had been in the yarn industry. Whatever the causes or reasons, it is clear that defendant’s use of the unregistered word “ Frostay ” in connection with its use for its yarn of a composition, construction, dimension in thickness identical with plaintiff’s yarn, with length in relation to weight, so two ounces yield about 265 yards, unusual color range, defendant’s sixteen being the same as that same quantity of plaintiff’s twenty, the sale of twenty two-ounce skeins to the box, all identical with that of plaintiff, the identity of sequence, colors and names with close and almost identical numbers,* the similarity of wording on labels, are calculated and likely to deceive the unwary purchaser desirous of purchasing plaintiff’s registered trade-marked Frappé yarn. (Colman v. Crump, 70 N. Y. 573.) The infringement does not depend upon the use of identical words or that a person looking at one would be deceived into the belief that it was the other. The form and sound are so similar that one not having a clear and definite memory of the trade-mark may be misled. (Northam Warren Carp. v. Universal Cosmetic Co., 18 F. [2d] 774; Coca-Cola
Both sides have called my attention to the case of Neva-Wet Corp. v. Never Wet Processing Corp. (277 N. Y. 163), decided March 8, 1938, by the Court of Appeals. In so far as applicable, that decision and authorities cited therein sustain plaintiff’s position in this action.
I am persuaded that plaintiff is entitled to the relief sought, with costs. The making of findings and conclusions incorporated in a formal decision has been waived by stipulation of the parties. Judgment may be entered accordingly on notice.