125 Misc. 737 | N.Y. Sup. Ct. | 1925
The plaintiff in this action, a manufacturer of men’s clothing, seeks an injunction against the defendants, a copartnership, restraining them from infringing upon its trade-mark. The plaintiff’s device consists of “ G. G. G.” in script form, while the defendants employ two script “ Gs ” with the “ & ” sign between them. The plaintiff is a larg'e concern doing extensive advertising, while the defendants have a much smaller business, but also do some advertising. Plaintiff’s use dates back to 1909, while defendants did not adopt their trade-mark until 1919.
It is evident that defendants’ device was deliberately copied from plaintiff’s, consciously influenced by the forms used by the latter. This is evidenced by the identity of the script letters and particularly by inclosing the trade-mark in quotation marks, which are also used by. the plaintiff and have been, thus used since the adoption of the trade-mark. But even if this were not so, it is well settled that defendants’ innocence of wrongful intent or the plaintiff’s failure to show actual deception or damage need not be established where the plaintiff proves its right and the fact that the similarity is so close as to make deception likely. (T. A. Vulcan v. Myers, 139 N. Y. 364; Kalish, Inc., v. Harper, 184 App. Div. 683; Lipson v. Feigenbaum, 205 id. 701.)
A very similar situation arose in the case of Goldman & Bros., Inc., v. Gold, in which the present plaintiff obtained an injunction against that defendant after a trial of the action before Mr. Justice Lydon. The court there held (N. Y. L. J. May 4, 1925, Special Term, Part III) that the defendant’s use of two “ Gs ” was an infringement of plaintiff’s three “ Gs.” A permanent injunction issued there and no appeal was taken. The present case differs from the other litigation only in that the defendants insert the “ & ” sign between the two letters. In the matter of the letters themselves, it is even a more flagrant imitation than the other. The letters exhibited at the hearing in this matter clearly show that the defendants have become more bold in their imitation, having enlarged the “ &” sign so that
In W. B. Manufacturing Co. v. Rubenstein (236 Mass. 215) the defendants Rubenstein were enjoined from using “ R. B.” even though these letters were the abbreviation of the name of the partnership firm. Furthermore, if “ G. G.” is an infringment, then “ G. & G.” must likewise be held to be one. In Frank v. Sleeper (150 Mass. 583) the court held that “ N. & S.” was an infringement upon “ N. S.”
The final objection that the defendants have been using the trade-mark for six yearn without protest against its use is also unavailable. Even if it should appear that the plaintiff had knowledge of its use, the doctrine of laches does not seem to have application in actions of this character. (Menendez v. Holt, 128 U. S. 514.) The motion should, therefore, be granted. Settle order.