101 A.D.2d 727 | N.Y. App. Div. | 1984
Lead Opinion
Order, Supreme Court, New York County (Shirley Fingerhood, J.), entered October 16, 1981, which granted plaintiff’s application for a preliminary injunction enjoining defendants from using the name “Little India of Queens” or the name “Little India” pending trial of the action, is reversed, on the law, the facts and in the exercise of discretion, with costs, and plaintiff’s motion for a preliminary injunction is denied. 11 Plaintiff, Little India Stores, Inc. (Little India), incorporated in March, 1980, has been engaged in the sale of Indian and Pakistani groceries and specialty foods, utensils, records and video tapes in New York County since June, 1980. Defendants Braj N. Singh and
Dissenting Opinion
I would affirm the order granting plaintiff’s application for a preliminary injunction. H The plaintiff was incorporated in March, 1980 and began doing business in June, 1980 at 128 East 28th Street in the heart of a wholesale and retail area for Indian and Pakistani goods, selling foods, utensils, tapes and records and serving the metropolitan Indian, Pakistani and Bangladesh communities, the bulk of whom live in Jackson Heights and Elmhurst, Queens. The defendant Manjula Singh was a stockholder, director and officer of the plaintiff. Together with Braj N. Singh, they worked at the store on salary and profit sharing. In 1981, they withdrew from the corporation and commenced operation of a business in Jackson Heights under the name of Little India of Queens, allegedly dealing with the same merchandise. The plaintiff then commenced this action alleging unfair competition and infringement of a trade name and seeks to permanently enjoin the Singhs from using any name which includes the term “Little India”. 11 The defense is that the two stores are geographically distant, that when they left the plaintiff, there were no restrictions on their right to set up an independent business, and that there are other stores which sell the same merchandise. 11 The court at Special Term granted a preliminary injunction under section 368-d of the General Business Law with a demonstrated likelihood of loss of clientele. H The geographical area is not so distant (see Lincoln Rest. Corp. v Wolfies Rest., 291 F2d 302), when one considers the appeal to people of a distinct ethnic community. (See Unfair Competition-Secondary Meaning, Ann., 41 ALR3d 434, 442.) 11 The defendants, having been associated with the plaintiff’s business when they withdrew from Little India Stores, Inc., had an obligation to refrain from soliciting former customers. (See Mohawk Maintenance Co. v
Concurrence Opinion
On the facts presented to Special Term, a close question was presented. Plaintiff’s subsequent failure to post the required bond and to enforce its rights under the preliminary injunction for almost two years seems to me to constitute the unusual situation in which it is appropriate for an appellate court to consider on appeal events subsequent to the order appealed from. That failure undermines significantly the bona fides of plaintiff’s contention at Special Term that a preliminary injunction was required to avoid irreparable damage. If the plaintiff could wait almost two years before undertaking to enforce its rights under the preliminary injunction, I think it can wait a brief additional period before the case is tried.