Opinion
March 29, 1960
Judgment unanimously modified on the law and on the facts to reflect in its injunctive provisions the agreement of defendant made informally before the Judge at Special Term to minimize the confusion in packaging between merchandise of plaintiff and defendant, and as so modified, affirmed, with costs to plaintiff. The opinion of the court at Special Term states: "In discussion with the court after the trial, the defendant agreed to change the printing and letter arrangement on its inside and outside boxes." The court's limitation of the scope of the injunctive relief was in part predicated on a reliance on the "changes * * * now proffered". We are of opinion that the simulation of plaintiff's products by defendant and the resulting confusion in merchandising rests very largely on the total effect of the printing, form and arrangement of the outside and inside boxes in which the products were distributed to the premium trade, but the record and exhibits before us do not demonstrate the scope of the proposed change, or how this agreement by defendant may be effected through provisions clearly stated in the judgment. The language of the injunction must necessarily be moulded on settlement of the order. Settle order on notice.
Concur — Botein, P.J., Breitel, Rabin, Valente and Bergan, JJ. [ 18 Misc.2d 321.]