The opinion of the court was delivered by: INCH
On January 18, 1934, the plaintiff filed in this court its bill of complaint based upon alleged unfair competition and violation of trade-marks.
On January 20, 1934, it likewise filed the present motion, served January 18, 1934, for an injunction pendente lite, a form of relief contemplated in the complaint.
The relief asked for on this motion is substantially the same as would be granted after a trial.
On January 31, 1934, the defendants filed a joint answer verified by Jacob Nekritz individually and as president.
The important fact therefore is that, while a trial would have testimony presented, this motion is based upon affidavits.
Unless, therefore, a clear case is presented by these affidavits so as to indicate the plain necessity for, and propriety of, the granting of this immediate relief in advance of the trial, the court prefers to leave the issues to such trial, especially where such trial may be reasonably reached on the calendar.
The question accordingly presented is whether the affidavits of plaintiff and the opposing affidavits of defendant present such a clear case. Due weight must be given to complaint and verified answer.
This question may be subdivided into consideration of the merchandise sold by plaintiff under its trade-marks and the question of whether all or any of the defendants should be enjoined.
The plaintiff is a New Jersey corporation engaged in the manufacture and sale of stove polish manufactured by it both as a liquid and as a paste. There are four defendants. The corporate defendant is a New York corporation, carrying on business in this district. The individual defendants are Jacob Nekritz, Pauline Nekritz, his wife, and Robert Goldberg, each alleged to be citizens and residents of the state of New York and residing in this district.
The trade-marks of plaintiff are those duly registered in the United States Patent Office.
Thus jurisdiction sufficiently appears on the face of the complaint.
Plaintiff manufactures and sells a liquid stove polish under the trade-mark "Dazzle." It has done so far a long time both under its present name and under the name of a co-partnership to which it succeeded. For practically the same time it has manufactured and sold a stove polish paste under the trade-mark "Vulcanol." The paper wrappers used by plaintiff and placed around the cans of its respective products contain, besides its trade-mark, the direction for use and a general advertising of the merits of that product.
The plaintiff alleges that its sales approximate $150,000 a year and that it has expended in advertising over $250,000. It also claims that the market for its products is being damaged by these alleged acts of the defendant in unfairly competing therein with plaintiff by manufacturing and selling the stove polish, liquid, and paste, complained of by plaintiff, which is alleged to be inflammable and dangerous, while that of plaintiff's is noninflammable and safe, as ...