The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
The defendant Abner B. Neuville is not a party to this motion, not having been served with the motion papers.
This is an action for the alleged infringement of a trade-mark "Paulette" registered by the plaintiff on May 7, 1940, and for unfair competition.
There is no diversity of citizenship, as plaintiff and defendants are all residents of the State of New York.
Plaintiff, in his complaint, prays for an injunction.
The defendant's answers raise issues as to infringement and unfair competition.
In the moving papers herein it is alleged that, not knowing of any prior registration, plaintiff has been using the name "Paulette" for ladies hosiery, sold by him at wholesale since 1926.
That in 1938 plaintiff applied for registration of his mark and then learned of a prior registration in 1924, by one Seymour Butt, Inc., of the trade-mark "Paulette" on ladies hats.
After his attempt to register the trademark "Paulette" in 1938, plaintiff acquired title to the trade-mark registered by Seymour Butt, Inc., in 1924, and on May 7, 1940, the United States Patent Office, on the application of plaintiff, registered the Trade-Mark 377,414 containing the word "Paulette" for hosiery, printed in the particular manner therein shown.
The defendants, with the exception of Abner B. Neuville, who is the husband of the defendant Paula B. Neuville, and employed by Paulette Shoppe as a salesman, on January 19, 1935, filed in the office of the Clerk of the County of Kings a certificate that they were conducting business under the name "Paulette Shoppe".
Since that time, said defendants have conducted a retail business under that name, and at the time of the hearing of this motion were conducting business under that name, at two places, towit: 706 Flatbush Avenue and 43 Lincoln Road, both in the Borough of Brooklyn, City of New York, and within the Eastern District of New York.
The word "Paulette" is a French adaptation of the given name of the defendant Paula B. Neuville.
Neither on the photographs, in evidence, of the defendant's two stores, nor on the stockings handled by defendants, which are in evidence, does it appear to me that there is any attempt to simulate the type in which the word "Paulette" appears in plaintiff's registered trade-mark, and in addition, both on the signs on the stores, and in the marking on the stockings, in evidence, the word "Paulette" is used in conjunction with the word "Shoppe".
It also appears that the defendants do not pack the stockings sold by them under the mark "Paulette Shoppe" in boxes which in any way simulate the boxes in which the plaintiff packs the stockings sold by him under the mark "Paulette", nor do defendants ...