263 A.D. 861 | N.Y. App. Div. | 1942
The record justifies the findings of fact and the conclusions of law in the decision of Special Term. Among the conclusions of law are the following:
“ 1. The defendants have engaged in unfair competition with the plaintiff by so presenting their wares to the public and so arranging their designs and packages as to mislead the unwary.
“ 2. Defendants have engaged in unfair competition with the plaintiff by palming off their wares for those of plaintiff by means misleading, deceptive and in a business sense unethical.
“ 3. The tubes, caps therefor, stands, and methods of advertising used by the defendants in connection with the display,- merchandising and advertising of their girdles and panty girdles constitute component parts of a plan to deceive and confuse the public, and their acts and practices in such connection constitute unfair competition against the plaintiff.”
The plaintiff, therefore, was entitled to greater injunctive relief than was granted. While plaintiff concedes that the defendants may use any shape or size container they desire, it correctly asserts that the container as a whole and the advertisements thereof may not so closely resemble those of the plaintiff as might tend to deceive the public. In our opinion, therefore, the plaintiff, in addition to the injunctive relief granted by the trial justice, should be entitled to restrain' the defendants from using the tubular packages, the caps, display signs and methods of advertising found in Exhibits 10, 11, 12, 14, 15, 16, 28 and 38, or any others so similar to those of plaintiff’s as might tend to deceive the trade or the public.
This is an action in equity which, in addition to the injunctive relief sought, expressly requests an accounting. Under such circumstances defendants should be directed to account. (Warren, Inc., v. Turner’s Gowns, Ltd., 285 N. Y. 62.)
The judgment should be modified accordingly and as so modified affirmed, with costs to the plaintiff.
Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.
Judgment unanimously modified in accordance with opinion and as so modified affirmed, with costs to the plaintiff. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.