Opinion
June 11, 1963
Order, entered on February 20, 1963, denying defendant's motion to dismiss the second amended complaint for insufficiency, unanimously affirmed, with $20 costs and disbursements to the respondent. The second amended complaint alleges a violation of section 43-a of the Lanham Act and seeks remedies. thereunder. It is alleged that the defendant is engaged in interstate commerce; that defendant's merchandise is inferior to the sample obtained from the competitor plaintiff; that defendant employed, in connection with such merchandise, "false description or representation * * * tending falsely to describe or represent the same" in that it represented it would make shipment as per sample; and that plaintiff has been damaged as a result thereof. These allegations suffice to make out a cause of action under the Lanham Act (cf. L'Aiglon Apparel v. Lana Lobell, Inc., 214 F.2d 649; Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641, 648-649). The act defines a new civil wrong and the prior dismissal of the original complaint because the common law afforded no remedy to a competitor where the wrong merely resulted in a diversion of customers without confusion or palming off ( Mastro Plastics Corp. v. Emenee Ind., 16 A.D.2d 420, affd. 12 N.Y.2d 826) is of no significance.
Concur — Botein, P.J., Breitel, Rabin, McNally and Stevens, JJ.