Opinion
October, 1899.
Walter A. Rosenbaum, for motion.
Leon Sanders, opposed.
While, from an inspection of the photographs of the parties' respective places of business, it would seem that there is no such identity of appearance as would justify the granting of an injunction to restrain the maintenance of the defendant's store in its present condition, I think that the motion should be granted to protect the plaintiff, pendente lite, from an infringement of his trade-mark, "The Little Shop," the question of his earlier adoption and advertisement of the name not being in dispute. The defendant's chosen appellation, "The Little Antique Shop," as applied to a business identical with that of the plaintiff, would, I think, be clearly calculated to deceive or mislead intending purchasers to the belief that the store so named was the plaintiff's place of business, and, under such circumstances, equity affords relief upon analogy and in principle to cases of trade-mark infringements. Chas. S. Higgins Co. v. Higgins Soap Co., 144 N.Y. 462. The term "The Little Shop" is an unusual and distinctive designation, and, in my view, the peculiarity would as clearly impress purchasers seeking a store so named, in a particular locality, whether the word "antique" were used or not. The name chosen by the plaintiff is decidedly more fanciful than descriptive, as applied, and he is to be protected in its use for the reasons found in the case of Cohn v. Reynolds, 26 Misc. 473; affd., 40 A.D. 619, where the use of the word "valet" in connection with the business of repairing clothing, was held to be the subject of protection. Motion granted so far as to restrain the use by the defendant of the words "Little Shop" upon or in connection with his present place of business, upon plaintiff's furnishing an undertaking in the sum of $500.
Ordered accordingly.