p. 100Frances & Co., Dressmakers, Inc., and Frances Spingold, Respondents, v. Gabriel J. Cohen, Doing Business as Frances Co., Appellant.Headnote
Trade names — injunction restraining defendant from using its name modified by requiring it to state in printed matter that it is not connected with plaintiff.A temporary injunction restraining the defendant, who was engaged in the same line of business as the plaintiff, from using its name was too drastic and it should be modified by requiring the defendant to state prominently in its advertisements and other printed matter that it “ is not connected with Frances & Co., Dressmakers, Inc.”
Appeal by the defendant, Gabriel J. Cohen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of January, 1922, granting plaintiffs’ motion for an injunction pendente lite restraining the defendant from using the name “ Frances,” and also restraining the defendant from using the name “ Madame Frances.”
Samuel Seabury of counsel [Jacob J. Lazaroe with him on the brief], for the appellant.
I. Maurice Wormser of counsel [Jerome Wilzin with him on the brief], for the respondents.
The defendant for several years past has been engaged in the manufacture and sale, at wholesale, of ladies’ gowns and dresses under the trade name of The Frances Co., and in or about October, 1921, opened a retail department of his business, which he extensively advertised. The defendant has conducted his business at Nos. 30-38 East Thirty-third street in the city of New York, and sells his dresses at prices ranging from $29.50 to $79.50. The plaintiff corporation carries on business of retailing dresses and gowns at No. 10 West Fifty-sixth street. Its prices range from $235 to $675 apiece for gowns, The order appealed from, among other things,
p. 101enjoins the defendant from using his trade name in the retail business. In our opinion the order in this respect is too drastic. Every protection from the apprehended injury from the use of the name can be afforded by requiring the defendant, in his advertisements and other printed matter, to state prominently that the defendant “ is not connected with Frances & Co., Dressmakers, Inc.”
The order will, therefore, be modified as indicated, and as modified affirmed, with ten dollars costs and disbursements to appellant.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order modified as indicated in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.