236 A.D. 479 | N.Y. App. Div. | 1932
The plaintiff claims to have established a reputation as a seller of ladies’ high-grade shoes at 510 Madison avenue, in the city of New York, under the name and trade-mark “ Penet.” Plaintiff’s business at 510 Madison avenue was founded in October, 1924. In the front window of its Madison avenue establishment and affixed to the “ sock lining ” of ladies’ shoes offered for sale by plaintiff there appeared the words “ Penet de Paris a Vous,” which, freely translated, meant “Penet of Paris to you.” The
The court at Special Term enjoined the defendants from the use in its business of the defendants’ corporate name upon the ground that it constituted an act of unfair competition with the plaintiff. We are of the opinion that the court was not justified upon the evidence in granting the plaintiff injunctive relief. Plaintiff does not come into a court of equity with, clean hands. In our opinion, by the adoption of the corporate name of Penet, so similar to the well-known name of Pinet, and the pretense of selling shoes from Paris, “ Penet de Paris a Vous,” clearly constituted a fraud upon the public. Unquestionably the plaintiff intended thereby to represent to the public that it was importing shoes of the well-known manufacturer, F. Pinet, Paris, and selling the same directly to customers here. At the time the plaintiff established its business on Madison avenue, in the trade and among many of our people the name Pinet was associated with ladies’ shoes of the highest grade, manufactured in Paris. For many years these shoes had been sold to customers in this country and to a limited extent had been imported by dealers here and exhibited throughout the United States as ladies’ shoes of the highest quality. The shoes dealt in by plaintiff were substantially all of American manufacture. The evidence does not disclose that any of the shoes of F. Pinet made in Paris were ever dealt in by plaintiff, although there' was some
We are, therefore, of the opinion that the judgment appealed from should be reversed, with costs of this appeal, and plaintiff’s complaint dismissed, with costs to defendants. We are also of the opinion that the counterclaim contained in the defendants’ answer was properly dismissed at the trial.
Finch, P. J., O’Malley, Sherman and Townley, JJ., concur.
Judgment in so far as it dismisses the counterclaims contained in defendants’ answer affirmed, and in all other respects reversed, with costs to defendants and the complaint dismissed, with costs. Settle order on notice reversing findings inconsistent with this determination, and containing new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.