Guerlain Perfumery Corporation of Delaware v. Klein

• Decision Date: 01 December 1931
• Citation: 56 F.2d 439
• Parties: GUERLAIN PERFUMERY CORPORATION OF DELAWARE v. KLEIN.
• Court: U.S. District Court — Eastern District of New York

56 F.2d 439 (1931)

GUERLAIN PERFUMERY CORPORATION OF DELAWARE v. KLEIN.

District Court, E. D. New York.

December 1, 1931.

Mock & Blum, of New York City, for plaintiff.

Max Seidenbaum, of Brooklyn, N. Y., for defendant.

INCH, District Judge.

On October 28, 1931, plaintiff duly filed its bill of complaint against the defendant praying for a preliminary and permanent injunction enjoining the defendant from using certain trade-marks specified in the bill of complaint except to designate the genuine product, etc., and that the defendant also be enjoined from the use of all misleading labels, display cards, etc.

The defendant has answered, and the issue raised by the pleadings will be tried in due time.

All questions of fact between the parties must be determined at the trial and cannot be determined on this motion.

Plaintiff, by order to show cause, now seeks the preliminary injunction.

It is a general rule that preliminary injunctions should not be granted except in a clear case nor if there is a substantial doubt as to plaintiff's right thereto, for, in a sense, much, if not all, of the relief plaintiff seeks at the trial, is thus granted in advance, on affidavits.

However, as has been well said by Nims, in his book on Unfair Competition (3d Ed.) p. 928, § 366(c): "In some instances the issuance of a preliminary injunction is most important, if not vital to the protection of industrial products."

Having these observations in mind and exercising that caution that is required of a court not to damage the business of a defendant nor unreasonably hesitate to give proper protection to a plaintiff's business, we can briefly state the controversy between the parties as it appears on this motion.

Plaintiff is a corporation engaged in the business of making and selling perfumes. Its business has been long established, and its products are highly esteemed. Among these are the two perfumes mentioned in its bill of complaint as to which it has duly adopted a trade-mark and which trade-marks have been duly registered in the United States Patent Office, in accordance with the Act of February 20, 1905 (15 USCA § 81 et seq.).

The first is "Mitsouko," No. 179256, registered February 5, 1924. The second is "Shalimar," No. 216906, registered August 24, 1926.

These trade-marks have been exclusively used by plaintiff since their issuance. From the affidavit submitted, these perfumes are expensive and are in demand by discriminating customers.

The defendant, Samuel Klein, according to his affidavit, is doing business in this district under the name and style of "Villon Perfumer" or "Villon." He is a graduate pharmacist, duly licensed, having devoted himself to the study of the drug and perfumery business. His efforts, according to his affidavit, have been to use some of this expensive perfume of plaintiff's and create a "blend." This "blend" he puts in little vials and sells for 35 cents each. Defendant claims that this "blend" is superior to plaintiff's perfumes. As to this I express no opinion.

Both plaintiff and defendant are residents of different states, and all the requirements of jurisdiction are present.

It is unnecessary to burden this memorandum with matters that must be taken up at the trial. Suffice it to say that counsel for defendant, in his brief, states that defendant has ceased to advertise in the manner claimed here to be objectionable by plaintiff the "blend" relating to the perfume "Mitsouko." Relying on this assurance of counsel, the question raised as to this particular perfume may be passed, leaving it to the trial of the suit. Counsel for defendant likewise states that, "If the words `genuine extracts' seem objectionable...