Opinion
March 3, 1922.
Samuel Seabury of counsel [ Jacob J. Lazaroe with him on the brief], for the appellant.
I. Maurice Wormser of counsel [ Jerome Wilzin with him on the brief], for the respondents.
The defendant for several years past has been engaged in the manufacture and sale, at wholesale, of ladies' gowns and dresses under the trade name of The Frances Co., and in or about October, 1921, opened a retail department of his business, which he extensively advertised. The defendant has conducted his business at Nos. 30-38 East Thirty-third street in the city of New York, and sells his dresses at prices ranging from $29.50 to $79.50. The plaintiff corporation carries on business of retailing dresses and gowns at No. 10 West Fifty-sixth street. Its prices range from $235 to $675 apiece for gowns. The order appealed from, among other things, enjoins the defendant from using his trade name in the retail business. In our opinion the order in this respect is too drastic. Every protection from the apprehended injury from the use of the name can be afforded by requiring the defendant, in his advertisements and other printed matter, to state prominently that the defendant "is not connected with Frances Co., Dressmakers, Inc."
The order will, therefore, be modified as indicated, and as modified affirmed, with ten dollars costs and disbursements to appellant.
CLARKE, P.J., DOWLING, SMITH and GREENBAUM, JJ., concur.
Order modified as indicated in opinion, and as modified affirmed, with ten dollars costs and disbursements to appellant. Settle order on notice.