19 Del. Ch. 242 | New York Court of Chancery | 1933
As will appear from an examination of the opinion filed on January 17th last, the real and substantial contest in this case was treated to be the one between the complainant and the intervenor, Robert Reis and Company, over the right of the latter to make and vend men’s underwear under the label “Manhattan.” The bill states two grounds of complaint against the original defendants, Sarnoff-Irving» Hat Stores and Mintz, its manager, viz., (a) that they were selling to the retail trade men’s underwear not of the complainant’s manufacture, bearing the label “Manhattan” to the injury of the complainant and therefore in violation of its rights, and (b) that they falsely were representing to purchasers of men’s wear that the garments sold by them were in fact the product of the complainant and that they therefore sold and palmed off on the public such men’s wear made by others as being the product of the complainant.
Robert Reis and Company, makers of the men’s wear
The complainant now makes the point that the bill should not be dismissed as to that branch of it which complains against the alleged palming off by the original defendants of men’s underwear not made by the complainant as being the product of the complainant. It bases its contention on two grounds, first, that the cause being at that stage only where the complainant has rested in the offering of proof, no motion to dismiss was made by the defendants, and second, if such motion had been made, it should have been denied because evidence had been introduced by the complainant sufficient to call upon the original defendants to proceed with their defense, if they have any, upon the issue of whether they had falsely represented underwear not made by the complainant to be of the complainant’s manufacture.
The original defendants have now supplied the motion to dismiss. The first ground upon which the complainant relies may, therefore, be disregarded. • Attention need be paid then to only the second ground. Applying that to Mintz, the manager, it is not sustainable, because there is no evidence supporting the charge that he falsely represented underwear not of the complainant’s manufacture
The complainant contends further that the bill should not be dismissed as against the intervener, Robert Reis and Company, as the opinion heretofore filed indicates it should, and moves for a rehearing in order that it might elaborate its views in support of that contention. The motion will be denied.
In making the motion the complainant insists that it is not seeking to re-open before the court the principles of' law upon which the opinion heretofore filed rests. It takes the position that, accepting the opinion as free from error in point of legal principles, yet the result of dismissal should not ensue, because, it contends, since the evidence shows confusion of the public by the use of the word “Manhattan” as a label on men’s wear manufactured by the complainant and the Reis Company, the court should by an injunctive order require the latter company in its use of the word as a mark or label to do so in conjunction with some distinguishing feature, such as a display of its own name as maker, in order that “Manhattan” when appearing on the Reis product might not by any possibility be attributed by the purchasing public to the complainant as the source of origin.
The complainant insists on regarding the Reis Com-
“The contract of 1920 expressly commits the complainant to the truth of the fact that prior thereto when underwear was labeled with the word ‘Manhattan’ it was recognized by the public as originating with the defendant (Reis Company); and all the intendments of the contract of 1913 indicate that, as to underwear, the defendant’s (Reis Company’s) continual use of the label as indicating a source of origin was more extensive in right than was that of the complainant.”
Thus, the element of priority of use of a name which is common in right to two competitors, which lies at the bottom of the cited cases as justification for requiring the junior user to adopt identifying and distinguishing features in connection with the common name, is unavailing to the complainant here.
The motion for rehearing is denied.
Order accordingly. ■