Cue Pub. Co. v. Colgate-Palmolive Co.
| Citation | 23 A.D.2d 829,259 N.Y.S.2d 377 |
| Decision Date | 11 May 1965 |
| Docket Number | COLGATE-PALMOLIVE |
| Parties | , 145 U.S.P.Q. 736 CUE PUBLISHING CO., Inc., Plaintiff-Appellant, v.COMPANY, Defendant-Respondent. |
| Court | New York Supreme Court Appellate Division |
L. Garment, New York City, for plaintiff-appellant.
T. C. Mason, New York City, for defendant-respondent.
Before BREITEL, J. P., and RABIN, VALENTE, EAGER and STEUER, JJ.
Judgment dismissing the complaint after trial unanimously affirmed, without costs or disbursements. While plaintiff may have demonstrated the possibility of some dilution of its trade mark, the evidence failed to establish a sufficient likelihood of injury of the distinctive quality of plaintiff's trade mark to warrant injunctive relief under Section 368-d of the General Business Law. Moreover, defendant originally began to use the name 'Cue' in connection with the launching of a liquid dentrifice in 1939, and the United States Patent Office then accepted defendant's application to register its 'Cue' trade mark for the liquid dentrifice. The re-registration in 1948 of the Cue dentrifice mark under the Lanham Trademark Act constituted constructive notice of the registrant's claim of ownership thereof. (See Lanham Act, § 22, 15 U.S.C. § 1072 (1958).) There was proof that plaintiff had actual knowledge of, and acquiesced in, the sale of the Cue dental liquid in 1939. Coupled with the aforesaid facts, was the evidence that from 1961 plaintiff was aware of defendant's marketing of the Cue stannous fluoride toothpaste. However, plaintiff did not voice objection until August, 1964, by which time defendant had expended considerable sums in developing the marketing of its new toothpaste. Under the circumstances, it would have been inequitable for plaintiff to obtain the injunctive relief it sought.
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