Opinion
2002-08216
Submitted September 30, 2003.
November 3, 2003.
In an action, inter alia, to recover damages for unfair competition, the plaintiff appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Westchester County (Friedman, JHO), entered July 22, 2002, as, upon a decision of the same court dated March 27, 2002, made after a nonjury trial, failed to award damages based on the defendant's sale of products subsequent to the subject 10,000 containers purchased by the plaintiff and used by the defendant, and the defendant cross-appeals, as limited by its brief, from so much of the same judgment as is in favor of the plaintiff and against it on the issue of liability and punitive damages.
Bashian, Enea Sirignano LLP, White Plains, N.Y. (George A. Sirignano of counsel), for appellant-respondent.
Matthew F. Sarnell, New York, N.Y., for respondent-appellant.
Before: DAVID S. RITTER, J.P., GABRIEL M. KRAUSMAN, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the judgment is reversed insofar as cross-appealed from, on the law and the facts, and the complaint is dismissed; and it is further,
ORDERED that the appeal from the judgment is dismissed as academic, in light of our determination on the cross appeal; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
To sustain a cause of action to recover damages for unfair competition through the use of a trade name, the plaintiff had to establish that the defendant's acts "constituted an unfair appropriation or exploitation of any special quality attached to plaintiff's name" ( Buffalo Packaging Corp. v. Buff-Pac, Inc., 155 A.D.2d 877, 878). The plaintiff failed to meet this burden, as the generic Russian word "Tvorog" and the descriptive terms attached to it, "Soft Cheese Russian Style," lack any special qualities and, therefore, the plaintiff did not have the exclusive right to appropriate these words ( see Sample, Inc. v. Porrath, 41 A.D.2d 118, 122, affd 33 N.Y.2d 961).
The Supreme Court erred in finding customer confusion or bad faith with respect to any product, including the 10,000 containers to which the plaintiff's compensatory damages were limited ( see Camelot Assoc. Corp. v. Camelot Design Dev., 298 A.D.2d 799, 800). The defendant placed over the plaintiff's name a label naming the new distributor, Gold Star Distributor, on the lids the plaintiff had left with the defendant.
In addition, the Supreme Court's award of punitive damages was improper ( see American Electronics v. Neptune Meter Co., 30 A.D.2d 117, 119).
RITTER, J.P., KRAUSMAN, SCHMIDT and CRANE, JJ., concur.