Restatement of Torts, Sec. 741 (1938), Lucien Lelong, Inc. v. Lander Co., 2 Cir., 1947, 164 F.2d 395. In cases where the New York courts have occasionally granted relief without proof of secondary meaning, one of the aforementioned predatory practices was established: In Santa's Workshop, Inc. v. Sterling, 3d Dept. 1956, 2 A.D.2d 262, 153 N.Y.S.2d 839, it was palming off; in Oneida, Ltd. v. National Silver Co., Sup.Ct.Madison Co. 1940, 25 N.Y.S.2d 271 and Avon Periodicals v. Ziff-Davis Publishing Co., 1st Dept. 1953, 282 App. Div. 200, 122 N.Y.S.2d 92, it was actual deception; in Dior v. Milton, Sup.Ct.N.Y.Co. 1956, 9 Misc.2d 425, 155 N.Y.S.2d 443, affirmed 1st Dept. 1956, 2 A.D.2d 878, 156 N.Y.S.2d 996, and Metropolitan Opera Ass'n v. Wagner-Nichols Record Corp., Sup.Ct.N.Y. Co. 1950, 199 Misc. 786, 101 N.Y.S.2d 483, affirmed 1st Dept. 1951, 279 App. Div. 632, 107 N.Y.S.2d 795, it was violation of plaintiff's property rights. The federal decisions fall into the same pattern: Artype, Incorporated v. Zappulla, 2 Cir., 1956, 228 F.2d 695, and Flint Co. v. Oleet Jewelry Manufacturing Co., D.C.S.D.N.Y. 1955, 133 F. Supp. 459 (actual deception); Upjohn Company v. Schwartz, 2 Cir., 1957, 246 F.2d 254 (palming off); International News Service v. Associated Press, 1918, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (appropriation of property rig

There the court found that "the tendency of the similarity of the brand and accompanying design, and of the make-up of the packages, to mislead ultimate consumers, is so evident, that it seems to us a case of unfair competition is made out" (240 U.S. at pages 423-424, 36 S.Ct. at page 364). On appeal from a judgment in the plaintiff's favor in Santa's Workshop v. Sterling, 3rd Dept. 1956, 2 A.D.2d 262, 153 N.Y.S.2d 839, the court affirmed but reduced the judgment, one judge dissenting and voting to dismiss. The facts showed such an obvious theft of the plaintiff's business ideas, physical layout and advertising that the fraudulent nature of the defendant's competition was most apparent.

e Hygienic Specialties Co. v. H.G. Salzman, Inc., 302 F.2d 614, 619 (2d Cir. 1962); Norwich Pharmacal Co. v. Sterling Drug Inc., 271 F.2d 569, 571 (2d Cir. 1959), cert. denied, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739 (1960); Speedry Prods., 271 F.2d at 649; Mastercrafters Clock Radio Co. v. Vacheron Constantin-Le Coultre Watches, Inc., 221 F.2d 464, 466 (2d Cir.), cert. denied, 350 U.S. 832, 76 S.Ct. 67, 100 L.Ed. 743 (1955); Chas. D. Briddell, Inc. v. Alglobe Trading Corp., 194 F.2d 416, 418 (2d Cir. 1952); Crescent Tool Co. v. Kilborn Bishop Co., 247 F. 299, 300 (2d Cir. 1917); Sublime Prods., Inc. v. Gerber Prods., Inc., 579 F. Supp. 248, 251 n. 4 (S.D.N.Y. 1984); Zippo Mfg. Co., 216 F. Supp. at 679-80.Hygienic Specialties, 302 F.2d at 620; Blisscraft of Hollywood v. United Plastics Co., 294 F.2d 694, 698 (2d Cir. 1961); Norwich Pharmacal, 271 F.2d at 571; see Upjohn Co. v. Schwartz 246 F.2d 254 (2d Cir. 1957); Flint v. Oleet Jewelry Mfg. Co., 133 F. Supp. 459 (S.D.N.Y. 1955); Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 153 N.Y.S.2d 839 (3d Dep't 1956) (upholding injunction), aff'd, 3 N.Y.2d 757, 143 N.E.2d 529, 163 N.Y.S.2d 986 (1957) (mem.); Santa's Workshop, Inc. v. Sterling, 282 A.D. 328, 122 N YS.2d 488 (3d Dep't 1953) (per curiam) (affirming denial of motion to dismiss); Avon Periodicals, Inc. v. Ziff-Davis Pub. Co., 282 A.D. 200, 122 N.Y.S.2d 92 (1st Dep't 1953); Oneida, Ltd. v. National Silver Co., 25 N.Y.S.2d 271 (Sup.Ct. 1940).

This is a rare case in the sense that plaintiffs have managed to acquire secondary meaning in a relatively short period of time. See, Speedry Products, Inc. v. Dri Mark Products, supra, 271 F.2d at 649-650; See, Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234 F.2d 538 (2d Cir. 1956); See, Noma Lites v. Lawn Spray, 222 F.2d 716, 717 (2d Cir. 1955); See, Santa's Workshop v. Sterling, 2 A.D.2d 262, 153 N.Y.S.2d 839 (3rd Dept. 1956), aff'd, 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529 (1957); See, Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir. 1965). There is no direct evidence here that the investing public associates the words "fund of funds" with plaintiffs; however, from the evidence contained in and attached to the affidavits in support of plaintiffs' motion for summary judgment and recited, supra, and the S.E.C. report of December 2, 1966, the conclusion is inescapable that the words "fund of funds" have come to be identified with plaintiffs. Plaintiffs' extraordinarily large American holdings, their far flung sales and expensive promotional activities, publicity in widely circulating publications and more than passing notice in a major government agency report about the business in which plaintiffs are engaged and which would be widely read by the professional segment of the industry of which plaintiffs are now a vital part, give the words "fund of funds" secondary meaning within lega

Sullivan v. Ed Sullivan Radio T.V., Inc., 1 A.D.2d 609, 152 N.Y.S.2d 227 (1st Dept. 1956); Avon Periodicals, Inc. v. Ziff-Davis Publishing Co., 282 App. Div. 200, 122 N.Y.S.2d 92 (1st Dept. 1953); Santa's Workshop, Inc. v. Sterling, 282 App. Div. 328, 329-330, 122 N.Y.S.2d 488 (3d Dept. 1953). See also, Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 153 N.Y.S.2d 839 (3d Dept. 1956) aff'd. 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529 (1957); Artype, Inc. v. Zappulla, 228 F.2d 695, 697 (2d Cir., 1956) (New York law applied).

1011 Such is the rule in unfair competition cases. Damages must correspond to "the amount which the plaintiff would have made except for the defendant's wrong ..., not the profits or revenues actually received or earned" by the defendant ( McRoberts Protective Agency v. Lans d ell Protective Agency, 61 A.D.2d 652, 655, 403 N.Y.S.2d 511 [1st Dept. 1978] [citations and internal quotation marks omitted]; see David Fox & Sons, Inc. v. King Poultry Co., 30 A.D.2d 789, 790–791, 292 N.Y.S.2d 21 [1st Dept. 1968] [Eager, J., dissenting], mod on dissenting op below 23 N.Y.2d 914, 298 N.Y.S.2d 314, 246 N.E.2d 166 [1969], rearg. denied 24 N.Y.2d 896, 301 N.Y.S.2d 634, 249 N.E.2d 476 [1969] ; Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 267, 153 N.Y.S.2d 839 [3d Dept. 1956], affd 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529 [1957] ). Another way of stating this rule is that damages in unfair competition cases should correspond to "plaintiff's losses [that] were a proximate result of defendants'

ORDERED that the judgment is affirmed, with costs.Contrary to the defendant's contention, the Supreme Court's award of damages to the plaintiff in the principal sum of $97,445 was warranted by the facts (see DiCarlo Distribs., Inc. v. Hampton Bays Diner Corp., 120 A.D.3d 612, 613, 992 N.Y.S.2d 54 ; Elkin v. Urarn Assoc., 72 A.D.3d 734, 736, 899 N.Y.S.2d 312 ; see also Pencom Sys. v. Shapiro, 193 A.D.2d 561, 598 N.Y.S.2d 212 ; Support Sys. Assoc. v. Tavolacci, 135 A.D.2d 704, 707, 522 N.Y.S.2d 604 ; Santa's Workshop v. Sterling, 2 A.D.2d 262, 267, 153 N.Y.S.2d 839, affd. 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529 ).We decline to consider the defendant's contention, raised for the first time on appeal, that the plaintiff failed to serve a notice of claim pursuant to Town Law § 65(3).

ORDERED that the judgment is affirmed, with costs. Contrary to the defendant's contention, the Supreme Court's award of damages to the plaintiff in the principal sum of $97,445 was warranted by the facts (see DiCarlo Distribs., Inc. v Hampton Bays Diner Corp., 120 AD3d 612, 613; Elkin v Urarn Assoc., 72 AD3d 734, 736; see also Pencom Sys. v Shapiro, 193 AD2d 561; Support Sys. Assoc. v Tavolacci, 135 AD2d 704, 707; Santa's Workshop v Sterling, 2 AD2d 262, 267, affd 3 NY2d 757). We decline to consider the defendant's contention, raised for the first time on appeal, that the plaintiff failed to serve a notice of claim pursuant to Town Law § 65(3).

accounting of the disloyal employee's gain, a calculation of what the employer would have made of the diverted corporate opportunity is an available measure of damages (see Harry R. Defler Corp. v. Kleeman, 19 A.D.2d 396, 403-404, affd 19 N.Y.2d 694). The choice of remedy belongs to the employer (see Western Elec. Co. v. Brenner, supra at 295, citing Restatement, Agency 2d, § 421A, Comment on Clause [c]). It is in this choice that the distinction becomes obscured between the measure of damages for breach of a covenant not to compete and for breach of the duty of loyalty. For the contractual damages of breach of the non-competition obligation, an employer must prove its own loss of profits, not what the employee's profits were (see Michel Cosmetics v. Tsirkas, 282 N.Y. 195, 200; Pencom Sys. v. Shapiro, 193 A.D.2d 561; Borne Chem. Co. v. Dictrow, 85 A.D.2d 646, 650; Weinrauch v. Kashkin, 64 A.D.2d 897, 898; McRoberts Protective Agency v. Lansdell Protective Agency, 61 A.D.2d 652, 655; Santa's Workshop v. Sterling, 2 A.D.2d 262, 267, affd 3 N.Y.2d 757). Once a party wronged by a violation of a restrictive covenant has proven its net loss of profits, the wrongdoer may rebut by "showing with reasonable certainty the proportion of the loss of profits attributable to the wrongful act of the defendant and recoverable as damages as opposed to the proportion due to other causes" (Borne Chem. Co. v. Dictrow, supra at 651). Also involved in thecalculation of an employer's net profits in this context is consideration of its own generalized expenses of administration and overhead (see 342 Holding Corp. v. Carlyle Constr. Corp., 31 A.D.2d 605, 606; American Elecs. v. Neptune Meter Co., 30 A.D.2d 117, 119, republished 30 A.D.2d 529; but cf. Lenobel, Inc. v. Senif, 252 A.D. 533, 536; Vitex Mfg. Corp. v. Caribtex Corp., 377 F.2d 795, 798 [3d Cir]; Resolute Ins. Co. v. Percy Jones, 198 F.2d 309, 312 [10th Cir]; see also Sayer v. Wilstrop, 200 A.D. 364, 377 [concurring opinion].