Norwich Pharmacal Co. v. Sterling Drug, Inc., 2 Cir., 271 F.2d 569, 571, certiorari denied 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739. See Santa's Workshop, Inc. v. Sterling, 3rd Dep't, 2 A.D.2d 262, 153 N.Y.S.2d 839; Upjohn Co. v. Schwartz, 2 Cir., 246 F.2d 254. Cf. Yale Elec. Corp. v. Robertson, 2 Cir., 26 F.2d 972. That plaintiffs' and defendant's restaurants are far apart is not necessarily a decisive fact. See, e.g., Ambassador East, Inc. v. Orsatti, Inc., 3 Cir., 257 F.2d 79 (Chicago "Pump Room" obtains injunction against Philadelphia restaurant); Stork Restaurant, Inc. v. Sahati, 9 Cir., 166 F.2d 348 (New York "Stork Club" obtains injunction against San Francisco tavern); Vaudable v. Montmartre, Inc., 20 Misc.2d 757, 193 N.Y.S.2d 332 (Paris "Maxim's" obtains injunction against New York restaurant). Appellant also claims that the dismissal of an application by appellees for an injunction pursuant to New York Penal Law McKinney's Consol.Laws, c. 40, § 964, which makes it a misdemeanor for one with intent to deceive the public to assume the corporate, assumed, or trade name of another and provides for injunctive relief, is res judicata here.

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).

(Footnotes omitted). The New York courts have enjoined palming off, Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 153 N.Y.S.2d 839 (1956). Acme cannot be said to have palmed off its mattress covers as those of Perfect Fit's.

Both New York and federal law allow injunctions to issue without proof of secondary meaning in certain limited situations. Norwich Pharmacal Co. v. Sterling Drug, Inc., supra. These involve cases in which the defendant has engaged in various predatory practices such as abuse of confidential business secrets (Noma Lites, Inc. v. Lawn Spray, Inc., supra), breach of fiduciary duty (Flexitized, Inc. v. National Flexitized Corp., supra), or palming off its product as that of plaintiff (Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 153 N.Y.S.2d 839 (1956)). In the present case the question comes down to whether Lipton has been attempting to palm off its semimoist cat food as Purina's. The court is of the opinion that Purina has failed to present sufficient evidence to justify preliminary relief at this stage of the litigation.

Trademark protection is not afforded a common, generic or surname unless it has acquired such special significance in the public mind that when the name is associated with a product, the public identifies the name as the source of the product. Playland Holding Corp. v. Playland Center, Inc., 1 N Y2d 300, 152 N.Y.S.2d 462, 135 N.E.2d 202 (1956); Ball v. United Artists Corp., 13 App. Div.2d 133, 214 N.Y.S.2d 219 (1st Dept. 1961); Santa's Workshop, Inc. v. Sterling, 2 App. Div.2d 262, 153 N.Y.S.2d 839 (3d Dept. 1956), affirmed, 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529 (1957). The names "Thomson" and "Thomson Industries" have acquired such special significance in the rotary and linear motion bearing fields.

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).

J.R. Wood Sons, Inc. v. Reese Jewelry Corp., 2 Cir., 1960, 278 F.2d 157, 160. See e.g., Santa's Workshop v. Sterling, 3d Dept. 1956, 2 A.D.2d 262, 153 N.Y.S.2d 839, affirmed 1957, 3 N.Y.2d 757, 163 N.Y.S.2d 986, 143 N.E.2d 529; Restatement, Torts, Vol. III, p. 540. Although jurisdiction of the claim for unfair competition depends on the federal jurisdiction which plaintiff invoked on its claim for patent infringement, it is probable that New York law applies to the claim for unfair competition.

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'