138 Misc. 426 | N.Y. Sup. Ct. | 1929
In actions for unfair competition by the use of similar trade-marks, identity of the trade-marks employed is not to be expected. A similarity sufficient to deceive by creating confusion in the mind of the casual purchaser possessed of ordinary prudence will suffice to condemn the practice as unfair and to justify the interposition of a court of equity to restrain the same. In the instant case the long-continued use by the plaintiff of its trade-mark and the general and favorable recognition of its wares, bearing the same, cannot well be disputed. I am satisfied that the name “ Knox ” as a trade-mark has long been used by plaintiff to identify its wares and is associated with the same in the mind of the purchasing public. Not only do the trade-marks here in dispute bear a close resemblance upon casual inspection, but a closer comparison emphasizes the conviction that there is an intent on the part of the defendant to mislead and deceive and to
The defendant points out some features in its device wherein it differs from the device employed by the plaintiff. It is undoubtedly true that there are some differences. Wherever there is no absolute identity, there will always be present points of difference, and in common experience these are resorted to in order to veil the simulation intended. Where, however, the general effect is one sufficient to mislead, confuse or deceive, such differences will be regarded as unimportant. I cannot be persuaded that the resemblances in the instant case are accidental. Being of the character as above stated, I hold them to be materially prejudicial to the plaintiff in its business and to constitute unfair competition.
That the name “ Zinox ” is the name of the president of the defendant corporation does not justify this misuse in its employment as a trade-mark. (Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; Lerner Stores Corporation v. Lerner Ladies Apparel Shop, 218 App. Div. 427.) His name constitutes no part of defendant’s corporate title; neither is its corporate title employed in its trade-mark to distinguish and identify its wares. It is undenied that the trademark or trade name “ Knox ” has been in use by the plaintiff for
Let the injunction issue accordingly during the pendency of this action, as prayed for by the defendant, upon its furnishing an undertaking in the sum of $5,000. Settle order.