Seeman v. Zechnowitz

136 A.D. 937, 121 N.Y.S. 125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1910
• Status: Published

Opinion

Scott, J.:

It is quite true, as the appellant contends, that an injunction pendente lite will not usually be granted in an action of this character unless the right thereto is made to appear quite clearly. As to the right to enjoin defendant’s use of the name “ White Lily,” disassociated from the labels which defendant has recently adopted, we are unwilling to decide upon the papers now before us. That qiiestion may well wait upon the trial of the action. As to the labels, however, we entertain no doubt at all.. They are an obvious, palpable imitation of plaintiffs’ label, unquestionably adopted with a view to deceiving purchasers and stealing plaintiffs’ trade. It may be, as defendant claims, that the new Tariff Act,

* which reaches out in many directions, compels the use of paper packages,. instead of tin, but it certainly does not compela simulation of plaintiffs’ wrappers. The order appealed from will, therefore, be so modified as to forbid the use of the wrappers now in use by defendant, or of any other wrappers simulating the wrappers in use by plaintiffs, and as so modified affirmed, without costs to either party, leaving all other questions to be determined upon the trial. Settle order on notice. Ingraham, P. J., McLaughlin and Clarke, JJ., concurred. Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.

See 36 U. S. Stat. at Large, 11, chap. 6.— [Rep.