Lerner v. Sportsmaster Co. — 4 Misc. 2d 478

Majority

p. 478

Herbert B. Lerner et al., Plaintiffs, v. Sportsmaster Co., Inc., Defendant.

Supreme Court, Special Term, New York County,

February 26, 1951.

A. Friedman for plaintiffs.

Herman L. Falk for defendant.

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.

p. 479

From 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.