Opinion
12-06-1905
PERLBERG v. ROSENSTONE.
J. Merritt Lane, for complainant. Weller & Lichtenstein, for defendant.
Suit for injunction by Edward Perlberg against Abraham Rosenstone. Heard on bill, answer, replications, and proofs in open court. Bill dismissed.
J. Merritt Lane, for complainant. Weller & Lichtenstein, for defendant.
GARRISON, V. C. By agreement between counsel this case was heard with the case of the same complainant against Samuel C. Smith. The opinion in the case of Perlberg v. Smith, 62 Atl. 442, contains all that is needed to be said, saving the particular facts applicable to the case against this defendant. They are as follows: Rosenstone is shown to have commenced business, with his brother, in 1893, at Passaic, N. J., in a store which they called the "Eagle Shoe Store." He had the words "Eagle Shoes" impressed by a rubber stamp upon the back strap of each pair of shoes sold in his store, and had an iron stamp made with the words "Eagle Shoes" or "Eagle Shoe Store" upon it, and impressed this stamp upon the shank of each pair of shoes sold by him. After a year his brother sold out to him, and he continued in business in Passaic until 1900, when he came to Hoboken, N. J., and opened a store there which he called the "Eagle Shoe Store," but after he came to Hoboken he discontinued marking the shoes themselves in any way. About a year and a half ago Perlberg opened a branch store under the name of the "Eagle Shoe Store" in Hoboken, at a distance of some 10 1/2 blocks from that of Rosenstone. Rosenstone's store was in the section of the city where the poorer class of customers lived, and Perlberg's was on the principal business street, where presumably the customers having more money would naturally shop. It is not shown that Perlberg knew of Rosenstone at that time, or that Rosenstone knew of Perlberg, or of each other's stores or use of the name "Eagle." Among the stock carried by Rosenstone were some of these shoes made by Young, which, as has been stated in the Smith Case, were marked on the strap "Eagle $3.00 Shoes," and upon the sole with the representation of an eagle and under it "$3.00 Eagle Shoes." Almost immediately after Perlberg opened his "Eagle Shoe Store" in Hoboken, and Rosenstone learned of it, he added to the banner, which was stretched in front of his store, upon which theretofore had appeared the words "Eagle Shoe Store," an additional strip, upon which he had painted the words: "This store has no connection with any other store in New Jersey." The sign of "Eagle Shoe Store" he did not change, but on the awnings he inserted the word "Original" before the word "Eagle," and when he moved across the street in the year 1903, and opened a new store, the large wooden sign covering the width of the building read the "Original Eagle Shoe Store." There was put in evidence a great amount of printed matter advertising Rosenstone's business, in every of which, after Perlberg came to Hoboken, there was language toconvey clearly the idea that this store of [ Rosenstone's had no connection with any other store, and had no branch. The case against Rosenstone rests entirely on the sale by him to one customer, who was sent there by Perlberg, of a pair of the "Eagle Shoes" jobbed by Young which have been heretofore described.
The complainant's contention is practically as it is in the Smith Case, that having appropriated the word "Eagle" in connection with the shoes sold by him, and made the same favorably known, he has a right to restrain Rosenstone from selling in the same city any shoes, wherever obtained, upon which the word "Eagle" appeared as a denomination of the shoes. Rosenstone's defenses are that he used the word "Eagle" in connection with shoes long before Perlberg did; had always called his store the "Eagle Shoe Store"; that since coming to Hoboken he had had occasionally shoes denominated in some way as "Eagle Shoes" which he purchased at auction sales, and which came to him thus denominated; that he never made any point of advertising them; that he never competed with Perlberg; and that there is no evidence of unfair competition in his case.
For the reasons heretofore given in the Smith Case, I will advise that the bill in this case be dismissed, with costs. I only think it is necessary to add, even if I am mistaken in my reasons for refusing relief to the complainant in the Smith Case, I should feel constrained to refuse it in this case. It seems so entirely clear that no charge of unfair competition was made out against this defendant that it would be but a waste of time to elaborate that conclusion.