Esso Standard Oil Co. v. Bazerman, Civ. 11652.
| Decision Date | 18 June 1951 |
| Docket Number | Civ. 11652. |
| Citation | 99 F. Supp. 983 |
| Parties | ESSO STANDARD OIL CO. v. BAZERMAN et al. |
| Court | U.S. District Court — Eastern District of New York |
Alexander, Cooper, Maltitz, Derenberg & Daniels, New York City, for plaintiff (Robert H. Scholl, F. X. Clair, Clifton Cooper, Joe E. Daniels, Walter J. Derenberg, and Louis Kunin, New York City, of counsel).
Milton Pinkus, Hempstead, N. Y., for defendants.
This is a plaintiff's motion for a preliminary injunction in an action in which infringement by defendants of plaintiff's trade-mark ESSO is alleged, and also unfair competition in employing the trademark as a sign in simulation of plaintiff's similar display, and in adopting as a tradedress for its filling stations, a color scheme and general arrangement which is confusingly similar to that used by plaintiff's filling station operators.
The allegations of the complaint, apart from purely formal matters, are put in issue by the answer—which has not been filed, but is copied in plaintiff's motion papers.
The motion is based upon affidavits which are quite informative as to the identity among users which has been established for the plaintiff's filling stations during the past sixteen years or so, in the course of promoting a public demand for the plaintiff's gasoline and motor oils. Certain incidents therein are denied in the opposing affidavits by one of the defendants and certain of his employees.
For present purposes there seems to be no dispute as to the following matters:
A. The defendants prior to the "early part of 1950" (Bazerman affidavit) operated six filling stations at certain enumerated places in Nassau County in this district, under an undisclosed name and style. At the last-mentioned period, the partners adopted the business style "Duel Service Stations", having organized in 1947 a corporation known as "Duel Oil Burner Co., Inc."
The significance—if any—of the word "Duel" is not explained.
Until 1950 the stations themselves were not painted in the same colors as those selling the plaintiff's products, and the sign displayed was a red triangle, and the pumps were painted green and white.
The new trade-dress adopted by the defendants involved:
A sign conspicuously swung to attract the eye of motorists, which was oval in form, white in color with a blue rim, and showing in large red block letters, the word DUEL. The size and method of its display were substantially like those of the plaintiff except as to the lettering and the...
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