203 A.D. 585 | N.Y. App. Div. | 1922
Plaintiff is a domestic corporation organized in March, 1915, to carry on the business of manufacturing and selling women’s waists, dresses and knitted goods. It is the successor of the business established by one Abraham Solomon in 1876, who in 1908 assumed the trade name and style of Pansy Shirt Waist Company.
In 1910, following the death of Abraham Solomon, the business was «conducted by his widow, who in May, 1910, registered the word “ Pansy ” in conjunction with the representation of the flower, pansy, in the United States Patent Office.
In 1915 the plaintiff corporation acquired the sole ownership of the business, including its trade marks and trade names, and thenceforth conducted business under the name of “ Pansy Waist Co., Inc.” On November 15, 1921, the name “Pansy” was registered by plaintiff as a trade mark for dresses and costumes, in the United States Patent Office, upon an application filed in February, 1921. Plaintiff’s place of business is in New York city, and it is alleged that it has upwards of 3,000 customers throughout the United States and Canada, and that its annual sales aggregate $1,000,000. It also appears that since 1917 plaintiff has been selling dresses under the trade mark “ Pansy,” and that it is extensively known to the trade as “ Pansy Dress Co.”
Defendant is a domestic corporation doing business under the name of the “ Pansy Dress Co., Inc.,” whose certificate of incorporation was executed on December 23, 1921, and filed in the county clerk’s office, New York county, on January 4/1922. The purposes of the corporation, according to its certificate,, are the manufacture, buying and selling of dresses, skirts and clothing. It was organized by Jacob Lipschitz and Max Lustberg, who. had
The word “ Pansy ” was an arbitrary name selected by the plaintiff’s first predecessor, and it was continuously used by successive owners. The only difference between the names of the respective parties is that the defendant substituted the word “ Dress ” for the word “ Waist.”
In Danziger v. Gottlieb (156 App. Div. 779) an injunction had been granted restraining the defendant from doing business under the name of “ Lenox Waist Mfg. Co.,” or from “ in any way or manner using the name Lenox in connection with the manufacture and sale of waists and from using the name Lenox upon any tags, stationery cards or other things, or signs of the defendant in connection with the manufacture and sale of waists.” The defendant thereupon changed the name of his business to “ Lenox Dress Mfg. Co.,” on the supposition that the use of the word “ dress ” in substitution for the word “ waists ” was not a violation of the injunctive order of the court. But this court stated: “ The manufacture and sale of dresses, which includes waists either as separate garments or united with skirts, under the name Lenox Dress Manufacturing Company, was a plain violation of the decree,” etc.
The uncontradicted affidavits submitted in behalf of the plaintiff established that for five years past it had been selling dresses as well as waists, and that such dresses were sold under the registered trade name “ Pansy,” and were known to the trade in general as “ Pansy Dresses.” Plaintiff, in its advertising, featured its dresses as “ Pansy Dresses.” By reason of the association of the name “ Pansy ” with the dresses sold by plaintiff, it became widely known to its customers as “ Pansy Dress Company,” as evidenced by numerous letters, which are exhibits in the case, which were intended for plaintiff, addressed to it as “ Pansy Dress Co.”
There can be no doubt as to the similarity of the two names and that the defendant’s name is calculated to confuse and deceive purchasers into believing that the Pansy dresses of the defendant are those -which plaintiff is selling.
In People ex rel. Columbia Co. v. O’Brien (101 App. Div. 296) the court stated: “ Where a certificate is filed with the same name as that of an existing corporation, or where the name so nearly resembles that of the existing corporation as to be calculated to deceive, the action of the Secretary of State is not conclusive and the courts have frequently by a judgment in equity granted relief to a prior corporation aggrieved.”
Defendant further contends that its name was innocently used. Assuming that to be true, it is nevertheless misleading and confusing and calculated to deceive. Besides, its attention was called to plaintiff’s rights a few days after its certificate of incorporation was filed, and with full knowledge of that fact it started up and continued its business under its corporate name.
The order appealed from should be reversed, with ten dollars costs and disbursements, and plaintiff’s motion for an injunction pendente lite is granted.
Clarke, P. J., Smith and Page, JJ., concur; Dowling, J., dissents.
Order reversed, with ten dollars costs and disbursements, and motion granted. Settle order on notice.