Opinion
January 14, 1938.
Breed, Abbott Morgan, for the plaintiff.
Samuel J. Siegel, for the defendant.
On this application for a temporary injunction only one point is raised. It is argued that plaintiff is not entitled to the relief it seeks because it has failed to enjoin other retailers who are also violating the fair trade agreements. Defendant did not sign a fair trade agreement, but admits receiving notice and cutting prices. There is no doubt that an issue was raised which, if material, is sufficient to defeat this application. There is nothing in the Fair Trade Act (Laws of 1935, chap. 976; McKinney's Unconsol. Laws, §§ 2201-2205) which compels the owner of a trade-marked product to take any action to protect price levels. The statute is wholly permissive, and allows him to do so if he chooses. Under these circumstances it is difficult to see how his failure to act in one instance can deprive him of his rights in another. The familiar answer to defendant's argument, namely, that it is impossible to restrain all violators simultaneously, is not the controlling factor. Defendant has alleged sufficient to raise an issue whether plaintiff's actions are not intentional in requiring certain dealers to maintain prices and allowing others to do as they please. Assuming that this is so, the resulting situation is created by the statute and is a consequence of the powers granted under it. The fact that the statute creates inequities is not a ground for a court's refusal to enforce it. The remedy lies with the Legislature.
The motion is granted. Submit bond in the sum of $1,500.