Citation Numbers: 170 Misc. 729
Judges: Cotillo
Filed Date: 3/31/1939
Status: Precedential
Modified Date: 1/12/2023
The plaintiff and its predecessors for the past sixty years have been engaged in the retail apparel specialty store business. Plaintiff maintains retail establishment on Fifth avenue, New York city, for the sale of women’s, children’s and men’s wearing apparel and accessories, and it conducts suburban and seasonal resort branch stores in many cities.
On April 23, 1926, the plaintiff adopted and used the expression Shirtmaker Frock ” for women’s and children’s dresses and
The defendants are manufacturers of dresses and blouses which are sold to retailers who engage in business in direct competition with the plaintiff. Until August, 1937, the defendants did not apply any trade-mark to the merchandise sold by them. At that time, which was two weeks after one of plaintiff’s former employees had become employed by them, the defendants adopted and obtained registration of the trade-mark “ The Shirt-Cutter ” for merchandise of the same type as is sold by plaintiff under its trademark “ Shirtmaker.” Both trade-marks begin with the word “ shirt ” and end with the letters “ er.” They look and sound substantially alike, and the meaning and suggestion conveyed by each is almost precisely identical. It seems extraordinary that, with an unlimited variety of names to select from, the defendants’ inventive faculties were so limited that they could only select a word which is practically a synonym of plaintiff’s nationally renowned mark.
In my opinion there is sufficient similarity in the form, appearance, spelling, sound and meaning of the two trade-marks that the ordinary purchaser, buying under usual conditions of trade in the average busy retail store, with no opportunity for visual comparison,
The affirmative defenses interposed by the defendants are without merit, and judgment is directed for the plaintiff. Findings of fact having been waived, the judgment submitted has been signed.