Kaufman v. Kaufman

GERARD, J.

The plaintiff, Benjamin H. Kaufman, during the last eight years has sold hats in the city of New York and other Eastern cities. His first store was at Third avenue and 125th street. He first made the special practice of selling hats at the uniform price of $1.50, and called his hats “Kaufman hats,” with the price of $1.50 appended. Within these eight- years he has so increased his business that he now has seventeen stores, ten in the borough of Manhattan, three in the borough of Brooklyn, and one each in the cities of Boston, Philadelphia, Providence, and Newark. He has at all times designated his wares as “Kaufman hats,” with the figures $1.50 usually appearing in connection- therewith, and he has at all times made a special business of selling hats for $1.50. The defendant, Samuel Kaufman, has recently opened a hat store at No. 25 Broadway. He has placed a sign on his premises reading ‘¿Kaufman’s hats,” and conspicuously uses the figures $1.50 in connection therewith.

The principle is well established that a man must use his own name honestly, and not as a means of pirating upon the good will and reputation of a business rival, and that, if he cannot use his own name without inevitably representing his goods as those of another, then he cannot use his own name at all. Devlin v. Devlin, 69 N. Y. 212, 25 Am. Rep. 173, is an instructive case in showing how far the courts of this state go in protecting a man who, under his own name, has built up a prosperous business. It is not usual for hat stores to conspicuously print the price of their hats or to fix' a uniform price, and I am of opinion that defendant is unfairly using his own name to steal plaintiff’s trade. It is true that the trade-marks used by plaintiff and defendant inside the hats are not similar; but this is not material, as it is the unfair use of the name and figures which lures the customer into the shop and leads him to believe that he is dealing with the “original Kaufman.”

Defendant will be enjoined from using the figures “$1.50” in connection with the name “Kaufman” on the front of. his store and in general advertising, and will be enjoined from using the name Kaufman at all, unless in connection with it he uses his first name on a line with it and in letters of equal size. Settle- order on notice.