Lerner v. Sportsmaster Co.

New York Supreme Court

Lerner v. Sportsmaster Co.

4 Misc. 2d 478, 103 N.Y.S.2d 990, 88 U.S.P.Q. (BNA) 445, 1951 N.Y. Misc. LEXIS 1468

CourtNew York Supreme Court

DecidedFebruary 26, 1951

StatusPublished

Cited by2 cases

This text of 4 Misc. 2d 478 (Lerner v. Sportsmaster Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lerner v. Sportsmaster Co., 4 Misc. 2d 478, 103 N.Y.S.2d 990, 88 U.S.P.Q. (BNA) 445, 1951 N.Y. Misc. LEXIS 1468 (N.Y. Super. Ct. 1951).

Pincite

Opinion

Charles D. Breitel, J.

The court is satisfied that defendant’s use of the name “ Sportsmaster ” in the manufacture or distribution of men’s sport apparel is unfairly competitive with plaintiff’s prior use of the name “ Sportmaster ”, without the intermediate “ s ”, upon sport shirts manufactured and distributed by plaintiff. Plaintiff is, accordingly, entitled to injunctive relief. On the other hand, plaintiff has not shown that he “ has been damaged in any quantitative sense ” (Biltmore Pub. Co. v. Grayson Pub. Corp., 272 App. Div. 504, 507); or particularly that ‘ ‘ the sales made by defendant would otherwise have gone to plaintiff or that plaintiff’s sales have been lessened by defendants’ sales ”. (Biltmore Pub. Co. v. Grayson Pub. Corp., supra, p. 507.) Consequently, an accounting is not justified.

[479]*479From a consideration of all the evidence, the court is of the opinion that defendant’s conduct was neither intentionally deceptive nor malicious. Defendant’s motions to dismiss and for judgment are denied. Plaintiff’s motion for judgment is granted in accordance with the views above expressed, but without costs of the action to either party. Settle judgment.

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Charles D. Breitel, J.

The court is satisfied that defendant’s use of the name “ Sportsmaster ” in the manufacture or distribution of men’s sport apparel is unfairly competitive with plaintiff’s prior use of the name “ Sportmaster ”, without the intermediate “ s ”, upon sport shirts manufactured and distributed by plaintiff. Plaintiff is, accordingly, entitled to injunctive relief. On the other hand, plaintiff has not shown that he “ has been damaged in any quantitative sense ” (Biltmore Pub. Co. v. Grayson Pub. Corp., 272 App. Div. 504, 507); or particularly that ‘ ‘ the sales made by defendant would otherwise have gone to plaintiff or that plaintiff’s sales have been lessened by defendants’ sales ”. (Biltmore Pub. Co. v. Grayson Pub. Corp., supra, p. 507.) Consequently, an accounting is not justified.

[479]*479From a consideration of all the evidence, the court is of the opinion that defendant’s conduct was neither intentionally deceptive nor malicious. Defendant’s motions to dismiss and for judgment are denied. Plaintiff’s motion for judgment is granted in accordance with the views above expressed, but without costs of the action to either party. Settle judgment.

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Bluebook (online)

4 Misc. 2d 478, 103 N.Y.S.2d 990, 88 U.S.P.Q. (BNA) 445, 1951 N.Y. Misc. LEXIS 1468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lerner-v-sportsmaster-co-nysupct-1951.

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