Jantzen Knitting Mills v. A. Balmuth, Inc. , 236 A.D. 685 ( 1931 )

Order granting motion to dismiss complaint for.insufficiency reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant to answer within ten days from date of entry of the order herein. Because of extensive advertising, plaintiff’s distinctive label is identified with and has become a part of the swimming suits that it manufactures. The removal of the label converts a well and favorably known article into an article of nondescript make. The label is plaintiff’s “ authentic seal.” It vouches for the quality of the goods. (Yale Electric Corporation v. Robertson, 26 F. [2d] 972, quoted in Forsythe Co., Inc., v. Forsythe Shoe Corp., 234 App. Div. 355.) By advertising the sale of plaintiff’s swimming suits and by removing therefrom the. distinctive label before offering them for sale, defendant provided itself with an opportunity, if it were so disposed, of selling goods of another and perhaps inferior make under its representation that it was selling plaintiff’s goods. It thus created the possibility not only of unfair competition against the plaintiff but of the perpetration of a fraud on the buying public. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.