142 N.Y.S. 94 | N.Y. App. Div. | 1913
This is an action for an injunction to prevent unfair competition. The plaintiff’s surname was G-ambitzky. He emigrated to this country in the year 1880. His brother Max, who was about twenty years older and had come over eleven years earlier, had been employed by or engaged in business with others as a merchant tailor in the city of New York, and had obtained for or given employment to the plaintiff with him, opened a merchant tailoring store on the Bowery alone
This action was commenced the latter part of March, 1911, to enjoin the defendants from using the name “ Bernhard,” or . “Bernhard & Co.” in connection with the sale of men’s clothing, in the city of Mew York, “without the full first name of the defendant Martha Bernhard prefixed to the said name c Bernhard,”’to designate that she is not the plaintiff, and to enjoin the defendants from continuing to imitate the plaintiff’s store front, and to enjoin them from selling or offering for sale men’s clothing hearing the name “ Bernhard ” without the given name of the defendant Bernhard prefixed thereto in such manner as to show that it is not the merchandise of the plaintiff, and for an accounting and damages. The plaintiff obtained a temporary injunction in accordance with the prayer of the complaint. The defendants thereupon changed their firm name to “ Bernhard & Riegel,” and substituted that name on the advertisement on the store front for the. former firm name, and they have since continued their business in that name only. The plaintiff then moved to punish the defendants for contempt of court in thus conducting business under the name “Bernhard & Riegel.” The motion was denied, and on appeal this court affirmed the order without opinion. (Bernhard v. Bernhard, 149 App. Div. 916.)
The trial court found, as conclusions of law, that the use of the name “Bernhard” by the defendants in-connection with the merchant tailoring business in the vicinity of the plaintiff’s
The appellants do not object to thosé parts of the judgment which enjoin the defendants from representing that their business is a branch of, or is connected with, the plaintiff’s business and award damages and costs to plaintiff; but they contend that in so far as the judgment enjoins them from using the name “Bernhard” or “Bernhard & Riegel,” it is unwarranted.
We are of opinion that the judgment, in so far as it is challenged by the appeal, cannot he sustained. The defendant Bernhard has the same right to use her name in the merchant tailoring business as has the plaintiff; and the defendant Riegel has a lawful right to engage in that business in his own name or in the name of a copartnership of which he is a member. The learned trial court has gone beyond any authoritative adjudication within this jurisdiction in attempting to enjoin the defendants from conducting business in their own names or as copartners in a specified territory. The law is well settled in this jurisdiction that any person has a lawful right to use his own name in conducting any lawful business, and, excepting in certain cases where for a valuable consideration he has contracted not to engage in business in his own name, such use cannot he wholly enjoined as to any place even though he has abused this right with a view to obtaining customers dishonestly, and that such abuse is to be prevented by regulating the manner in which one may conduct business in his own
Ingraham, P. J., and Hotchkiss, J., concurred'; McLaughlin and Dowling, JJ., dissented and voted for the affirmance of the judgment.
Judgment modified as indicated in opinion and as modified affirmed, without costs. Order to be settled on notice.