Opinion
No. 10982.
July 31, 1950.
Rogers, Hoge Hills, New York City, for plaintiff.
William J. Wilson, Brooklyn, N.Y., for defendant.
The motion before the Court is an application by plaintiff for a preliminary injunction in a suit for alleged infringement of trade-mark. This motion is seriously opposed by the defendant on various grounds, among them the validity of the trade-mark relied upon by plaintiff, and the question of whether, if such trade-mark exists, it has been infringed or violated by defendant. In general a preliminary injunction should not be granted on conflicting claims where serious issues of fact are urged, and which should be disposed of at the trial. In other words, a disposition of such issues by a motion requires a reasonably clear basis for a decision before a trial. In substance, it appears that, granting plaintiff had a valid trade-mark, nevertheless, it is not disputed that plaintiff allowed defendant to use the trade-mark under certain circumstances which plaintiff claims were not observed by defendant. In my opinion the somewhat voluminous papers submitted, which I have carefully examined, indicate to me that a preliminary injunction should be denied, and that these various questions be disposed of at a trial.
While I do not make it a condition, it seems to me that the defendant, pending this trial, should keep an account of his sales wherein this trade-mark is used, so that plaintiff may, by proper motion prior to the trial, have a right to examine same should the necessity arise.
As to one of the exhibits, the so-called "hassock fan", the use of the trade-mark in connection therewith has admittedly been abandoned.
Motion denied. Settle order on notice.