191 F.Supp. 937 (S.D.N.Y. 1961), Triumph Hosiery Mills, Inc. v. Triumph Intern. Corp.

Citation:191 F.Supp. 937
Case Date:March 10, 1961
Court:United States District Courts, 2nd Circuit, Southern District of New York

Page 937

191 F.Supp. 937 (S.D.N.Y. 1961)



TRIUMPH INTERNATIONAL CORPORATION and Triumph of Europe, Inc., Defendants.

United States District Court, S.D. New York

March 10, 1961

Page 938

Lipkowitz & Plaut, New York City, for plaintiff. Irving D. Lipkowitz, I. Robert Harris, New York City, of counsel.

Brumbauch, Free, Graves & Donohue, New York City, for defendants. Granville M. Brumbaugh, Richard G. Fuller, Jr., New York City, of counsel.

CASHIN, District Judge.

On July 15, 1960 I denied plaintiff's motion for a preliminary injunction. 187 F.Supp. 169. Plaintiff appealed from the order denying its motion. While the case was pending before the Court of Appeals plaintiff learned of facts which, if they had been presented on the original application, plaintiff thought might have led me to a different conclusion. Application was made to the Court of Appeals for leave to renew the motion for a preliminary injunction and such leave was granted. The facts before me on the prior application, insofar as I thought them relevant, were summarized in my opinion, D.C.1960, 187 F.Supp. 169, and, therefore, will not be reviewed at length herein.

Basically, plaintiff's position on the present motion is that a vital finding in my first opinion, namely, that the defendants are 'innocent' junior users of the word 'Triumph' in their corporate names, was in error and that that error was induced by misrepresentation and concealment by defendants in their papers in opposition to the original motion.

Defendants, on the other hand, contend that plaintiff has no standing to renew their motion since the facts now presented are not 'newly discovered evidence' within the meaning of Rule 60(b) (2) of the Federal Rules of Civil Procedure and, in any event, the facts now presented do not warrant any change in my finding of them as innocent junior users.

I will dispose of defendants' procedural argument first. Even though courts are loath to having outstanding orders or judgments which are erroneous, nevertheless, there must be an end to litigation and so final orders can be reconsidered only on a very strong showing. Rule 60(b) cited by defendants, and the rationale upon which it is based, have no application to the present motion. By its terms, Rule 60(b) applies only to final orders. The order denying a preliminary injunction is clearly interlocutory. The rationale upon which the rule is based is equally inappropriate. The litigation is not in any case at an end. The actual trial on the merits has not yet been held. Even when a trial on the merits has been held and an interlocutory judgment fixing liability has been entered '* * * the court (does) not lack power at any time prior to entry of its final judgment * * * to reconsider any portion of its decision and reopen any part of the case. (citing cases). It (is) free in its discretion to grant a reargument based either on all the evidence then of record or only the evidence before the court when it rendered its interlocutory decision, or to reopen the case for further evidence.' Marconi Wireless Telegraph Company v. United States, 1942, 320 U.S. 1, 47-48, 63 S.Ct. 1393, 1415, 87 L.Ed. 1731. In the exercise of my discretion, I will consider the further evidence presented by plaintiff whether or not it could have been discovered

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before the first motion in the exercise of due diligence.

The alleged misrepresentation in the defendants' original papers which plaintiff now relies upon is an implicit one as to the length of time defendants' parent and their affiliates have used the word 'Triumph' in their trade names. Plaintiff's position is not without support. Thus, in defendants' summarization of the facts in their memorandum in opposition to the original motion, it is stated (pp. 2-3) as follows:

'Triumph Spiesshofer & Braun

'Defendants' parent, Triumph Spiesshofer & Braun is probably the world's largest manufacturer and distributor of girdles, corsets, brassieres and other articles of women's foundation garments. Its business began in 1886 in Germany and has expanded throughout the world. Defendants' Exhibit 1 is a list of 80 countries and territories where the goods of Triumph Spiesshofer & Braun are distributed and sold. Over 12,000 persons are employed by Triumph Spiesshofer & Braun and its many inland German and foreign subsidiaries and affiliates. It has marketing subsidiaries and affiliates, in addition...

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