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].

In any case, the six-month restriction on the solicitation of customers is a reasonable restraint, narrowly tailored to protect the employer's legitimate interests and not unduly burdensome to the employee or to the public (see, e.g., Uniform Rental Div. v Moreno, 83 A.D.2d 629). The trial court properly awarded the plaintiff damages in "the amount [that] the plaintiff would have made except for the defendant's wrong" (Santa's Workshop v Sterling, 2 A.D.2d 262, 267, affd 3 N.Y.2d 757; see also, McRoberts Protective Agency v Lansdell Protective Agency, 61 A.D.2d 652, 655). The appellant himself testified that prior to his resignation he was confident that the plaintiff would be awarded phase four of the Rockwell contract and further conceded that the reason the plaintiff was not awarded the subject contract was because Matec had already secured the business as early as March of 1983.

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).

`the amount of loss sustained by it, including opportunities for profit on the accounts diverted from it through defendants' conduct' . . . or, stated differently, `the amount which [Westwood] would have made except for defendant[s'] wrong. . . .'McRoberts Protective Agency, Inc. v. Lansdell Protective Agency, Inc., 61 A.D.2d 652, 655, 403 N.Y.S.2d 511, 513 (1st Dep't 1978) (quoting Duane Jones Co. v. Burke, 306 N.Y. 172, 192, 117 N.E.2d 237, 247 (1954) Santa's Workshop, Inc. v. Sterling, 2 A.D.2d 262, 267, 153 N.Y.S.2d 839, 845 (3d Dep't 1956), aff'd per curiam, 3 N.Y.2d 757, 143 N.E.2d 529, 163 N.Y.S.2d 986 (1957)); see E.W. Bruno Co. v. Friedberg, 21 A.D.2d 336, 341, 250 N.Y.S.2d 187, 192 (1st Dep't 1964). The proper method of computing these damages is to estimate the net profits that Westwood would have earned from Synthetic for a reasonable period of time had Fletcher and Kulick not diverted the account to themselves.

The court computed profits by attributing to plaintiff based on evidence of past performance the total receipts that he would have produced in his business during the period of his disability and deducting therefrom only such business expenses as would necessarily be related to the production of that income. In effect, the court adopted the general rule that lost profits mean "net profits" (see Martin Motor Sales v. Saab-Scania of Amer., 452 F. Supp. 1047; 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). We cannot say that Trial Term's award of $508 per month based on this computation is not supported by the evidence.

In the current context, those words, used in their primary sense, merely name or describe aerosols (see Webster's Third New International Dictionary) and are in the public domain. Therefore, they cannot be appropriated for exclusive use, nor can their use on a container as an honest description of the product be prevented (cf. Barrett Chem. Co. v Stern, 176 N.Y. 27; Neva-Wet Corp. of Amer. v. Never Wet Processing Corp., 277 N.Y. 163). The principle applies whether the word or term in issue is in English or in some other language (Roncoroni v. Gross, 92 App. Div. 221). While the defendant may not be prevented from using the words in question, it does have a duty to use reasonable care to prevent undue confusion in the public mind between its product and that of the plaintiff (cf. Kellog Co. v. National Biscuit Co., 305 U.S. 111, 118-119; Santa's Workshop v. Sterling, 2 A.D.2d 262, affd 3 N.Y.2d 757; Litwin v. Maddux, 7 Misc.2d 750, 757-759). Given the facts before it, Special Term was entitled to conclude that defendant's use of the terms "La Bomba" and "La Super Bomba" could be confusing to the public.

(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.