Lavanburg v. Pfeiffer

23 Misc. 577, 52 N.Y.S. 801

• Court: New York Supreme Court
• Decided: May 15, 1898
• Status: Published

Opinion

Cohen, J.

The plaintiff and. the defendant were formerly co-partners, engaged .in the business of manufacturing and selling dry colors. The copartnership was dissolved December 24, 1896, and the plaintiff bought the assets of the business, including the trade names and marks, and since that time the plaintiff alone, and the defendant, either alone or associated with others, have continued in. the same kind of business. Among the trade names of the old firm were those of “Oriole Vermilion.” and “ Péerless Green-,” which names the plaintiff now seeks to enjoin the defendant from using. It nowhere appears from the affidavits that on any manufactured article the defendant had' used either of those names. It does appear that he has used “O. Vermilion” and “P. Green;” but even assuming the plaintiff’s right to both adjectives, he would riot be warranted in preventing the defendant from, using the initials instead of the name, as such a use is not calculated to deceive the public, or, at least, so much of it as use their eyes and ears.

It does .appear by affidavits, which are flatly contradicted, that products made by the defendant were sold in small quantities, and in three or four instances under the verbal description of “ Oriole ” or “Peerless.” Under such circumstances, it does not seem to me that the plaintiff has made out a case for a preliminary injunction. As the defendant has expressed his willingness to accept short notice of trial for the March Term, the plaintiff can have a speedy trial, where witnesses will be examined and cross-examined, and then obtain injunctive relief if he then he found entitled thereto.

Motion denied.