Opinion
May 11, 1965
Judgment dismissing the complaint after trial unanimously affirmed, without costs or disbursements. While plaintiff may have demonstrated the possibility of some dilution of its trade-mark, the evidence failed to establish a sufficient likelihood of injury of the distinctive quality of plaintiff's trade-mark to warrant injunctive relief under section 368-d Gen. Bus. of the General Business Law. Moreover, defendant originally began to use the name "Cue" in connection with the launching of a liquid dentifrice in 1939, and the United States Patent Office then accepted defendant's application to register its "Cue" trade-mark for the liquid dentifrice. The reregistration in 1948 of the Cue dentifrice mark under the Lanham Trademark Act constituted constructive notice of the registrant's claim of ownership thereof. (See Lanham Act, § 22, U.S. Code, tit. 15, § 1072.) There was proof that plaintiff had actual knowledge of, and acquiesced in, the sale of the Cue dental liquid in 1939. Coupled with the aforesaid facts, was the evidence that from 1961 plaintiff was aware of defendant's marketing of the Cue stannous fluoride toothpaste. However, plaintiff did not voice objection until August, 1964, by which time defendant had expended considerable sums in developing the marketing of its new toothpaste. Under the circumstances, it would have been inequitable for plaintiff to obtain the injunctive relief it sought.
Concur — Breitel, J.P., Rabin, Valente, Eager and Steuer, JJ. [ 45 Misc.2d 161.]