Opinion
May 18, 1999
Appeal from the Supreme Court, New York County (Jane Solomon, J.).
The challenged injunction is sufficiently supported by evidence showing that plaintiffs had enjoyed 20 years of exclusive use of the name "Wyndham", realizing an almost unprecedented rate of sales success by maintaining an 80% or higher occupancy rate, that their hotel has received many favorable unsolicited writeups in travel guides and periodicals, that defendants' New York business office receives telephone inquiries from potential customers attempting to reach plaintiffs' hotel, and that a national survey indicated that a third of the traveling public believed there was relationship between plaintiffs' hotel and the Wyndham hotel defendants are operating near LaGuardia Airport ( see, Allied Maintenance Corp. v. Allied Mech. Trades, 42 N.Y.2d 538, 542-543). There is no merit to defendants' claim of laches based on plaintiffs' acquiescence in defendants' use of the name Wyndham outside New York for 10 years, it appearing that plaintiffs acted immediately upon learning that defendants intended to expand their use of the Wyndham name to New York. While defendants are correct that plaintiffs' Lanham Act claim is inconsistent with the position they took in prior Federal court litigation, as the elements of Landham Act relief are virtually identical to those under General Business Law former § 368-b , any error by the trial court in applying the elements of the Lanham Act was harmless. The injunction is neither overly burdensome to defendants nor too narrow in area to protect plaintiffs.
Concur — Rosenberger, J. P., Williams, Rubin, Mazzarelli and Friedman, JJ.