Klein v. Ekco Products Co. ( 1955 )

In an action to recover damages for copying plaintiff’s novel device in breach of a confidential relationship, trademark infringement, and unfair competition, defendants appeal from an order denying their motion for judgment on the pleadings or for summary judgment. Order affirmed, with $10 costs and disbursements. No opinion. MaeCrate, Beldoek, Murphy and Ughetta, JJ., concur; Wenzel, Acting P. J., dissents and votes to reverse the order and to grant defendants’ alternative motion for summary judgment with respect to the first cause of action, with the following memorandum: The relationship between the parties herein, as conceded by both sides, was established and finds its complete expression in the five letters attached to the defendants’ answer. There is nothing in any one or all of them which even intimates a confidential relationship. To the contrary, the plaintiff’s first letter refers to its “newly patented knife blade”. Patenting involves publication. The parties were, therefore, dealing at arm’s length, and not under circumstances that might have prevailed had the defendants been advised that the knife blade was of secret or previously undisclosed design or pattern. [See post, p. 1060.]