243 A.D. 292 | N.Y. App. Div. | 1935
The record on appeal herein leaves no doubt in our minds that the defendants have been guilty of most flagrant acts of unfair competition with the plaintiffs. The surreptitious manner in which the defendants obtained from plaintiff Nu Enamel Corporation inside information of the conduct of its business, under the guise of securing a franchise for the sale and distribution • of said plaintiff’s products in the State of California, including said plaintiff’s folder of printed directions and information for the use of its product, clearly discloses the defendants’ ulterior purposes. The defendant Nathan Schmuckler procured from the president of the plaintiff a copy of one of plaintiff’s folders of directions and information. The defendants had this folder reproduced and copied in practically identical form and wording, except that the defendants’ trade name, “ Duo Enamel,” was substituted for that of the plaintiff, and then distributed the folder to the public as their
The courts of this State and sister States have uniformly restrained acts of unfair competition much less flagrant than those of the defendants here. In the cases of Phenix Cheese Co. v. Kirp (176 App. Div. 735); Cash, Inc., v. Steinbook (220 id. 569); Kallus v. Bimblick Toy Mfg. Co., Inc. (229 id. 313); Volger v. Force (63 id. 122); T. A. Vulcan v. Myers (46 N. Y. St. Repr. 962; affd., 139 N. Y. 364); Dobbs & Co. v. Cobbs Haberdasher, Inc. (226 App. Div. 372), and in many other decisions of this court in cases where acts of unfair competition on the part of the defendants were much less flagrant than those of the defendants herein, this court has restrained the continuance of the acts of unfair competition.
We hold that the plaintiffs are entitled to enjoin the defendants from the further use of the trade name ■' Duo Enamel ” in connection with the defendants’ business, from the adoption of plain
The judgment appealed from should be reversed, with costs, and judgment entered as directed herein, with costs.
Present — Martin, P. J., Merrell, McAvoy, Glennon and Untermyer, JJ.
Judgment reversed, with costs, and judgment directed to be entered in accordance with opinion, with costs. 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.