207 Misc. 986 | N.Y. Sup. Ct. | 1955
Plaintiff applies for a temporary injunction in an action for a permanent injunction pursuant to section 369-a of the General Business Law — the Feld-Crawford or Fair Trade Law. The existence of the fair-trade agreement is not in dispute. Sales below the fair-trade price are claimed and while
The defendant has raised several questions, some of which are of weight. The articles involved are a Kodak Duaflex III Camera and Brownie Hawkeye Flash Model Camera. While the sales in question were of these cameras as individual products, it appears that defendant also sells them in combination with other products in so-called photographic kits. It appears that plaintiff, in this case, previously applied for a temporary injunction in regard to the sale of these kits. The injunction was denied on the ground that a manufacturer may only fair trade products of Ms own manufacture and when he offers them for sale in combination with articles made by others (as distinct from integrating a part made by others in his own trade-marked article) he may not fair trade the combined products. (207 Misc. 283.) Defendant now claims that the fact that plaintiff is currently selling kits is an abandonment of its fair-trade contract as regards any article comprised in the kit. Generally the question of whether a manufacturer has abandoned his contract has been treated as whether his conduct is equitable, whether he has clean hands. However it may be fairly said that where a manufacturer provides for sales at a lower price than the fair-trade price he is in no position to insist on the latter. In tMs connection it is well to consider whether an abandonment of the price of one or more articles is involved or of the whole contract. WMle a general course of unfair dealing or going into competition with retailers and underselling them might well be deemed an abandonment of the entire contract, the situation here involving only what is fair in the retailing of specific items can only be held to involve those specific items and not to affect the contract generally and other items.
It would seem that an abandonment could only be spelled out if plaintiff is permitting or consenting to an arrangement whereby the article can be sold in reality below the fair-trade contract price. In this connection no objection can be seen to combining articles in a single offer providing all of them are products of the seller’s manufacture, trade-marked by him and meet the requirements of being in free competition. The fact that the fair-trade price for the combination of articles is less than the total of the fair-trade prices for the articles individually is not significant.
With these factors in mind, it is seen that there has been no abandonment of the fair-trade agreement as regards the articles that are the subject of tMs motion.
Motion denied.