Warwick Hotel Pharmacy, Inc. v. Kaye-Bee Pharmacy, Inc.

283 A.D. 1015 | N.Y. App. Div. | 1954

Per Curiam.

An injunction pendente lite has been issued restraining defendants from using the name “ Warwick Chemists ” in the conduct of a drugstore at 1348 Avenue of the Americas, Hew York City.

There are two corporate plaintiffs. One of them, Dorwiek Chemist Shoppe, Inc., conducts a drugstore under its own name at 1336 Avenue of the Americas, which is the southeast corner of 54th Street. The second plaintiff, Warwick Hotel Pharmacy, Inc., is a corporation, the capital stock of which is owned by the same interests as Dorwiek Chemist Shoppe, Inc., but plaintiff Warwick Hotel Pharmacy, Inc., has never been engaged in business. Its only activity since its incorporation has been to pay its franchise taxes.

Defendants’ store is north of 54th Street and is located in the Warwick Hotel, a prominent hostelry occupying the northeast corner of 54th Street. Defendants are tenants of the hotel, and have permission of its operator to use the name Warwick Chemists. Plaintiffs have never sought or obtained like permission with respect to the use of Warwick as part of a corporate name.

Under the circumstances, we see no necessity for a temporary injunction, and no equity to be served in granting such relief. The names of Dorwiek and Warwick are not so alike as to cause confusion. There is no proof of secondary meaning in the name “Warwick” so as to afford any rights to plaintiffs. The isolated instances of alleged confusion in mail delivery, etc., as set forth in the record are not sufficient to show any unfair competition.

The order appealed from should be reversed, with $20 costs and disbursements, and the motion denied.

Dore, J. P., Cohn, Callahan, Bastow and Botein, JJ., concur.

Order unanimously reversed, with one bill of $20 costs and disbursements to the appellants, and the motion denied.