92 F. Supp. 966 | E.D.N.Y | 1950
The motion before the Court is an application by plaintiff for a preliminary injunction in a suit for alleged infringement of trade-mark. This motion is seriously opposed by the defendant on various grounds, among them the validity of the trade-mark relied upon by plaintiff, and the question of whether, if such trademark exists, it has been infringed or violated by defendant. In general a preliminary injunction should not be granted on conflicting claims where serious issues of fact are urged, and which should be disposed of at the trial. In other words, a disposition of such issues by a motion requires a reasonably clear basis for a decision before a trial. In substance, it appears that, granting plaintiff had a valid trade-mark, nevertheless, it is not disputed that plaintiff allowed defendant to use the trade-mark under certain circumstances which plaintiff claims were not observed by defendant. In my opinion the somewhat voluminous papers submitted, which I have carefully examined, indicate to me that a preliminary injunction should be denied, and that these various questions be disposed of at a trial.
While I do not make it a condition, it seems to me that the defendant, pending this trial, should keep an account of his sales wherein this trade-mark is used, so that plaintiff may, by proper motion prior to the trial, have a right to examine same should the necessity arise.
As to one of the exhibits, the so-called “hassock fan”, the use of the trade-mark in connection therewith has admittedly been abandoned.
Motion denied. Settle order on notice.
