Polackoff v. Sunkin

• Decision Date: 05 January 1934
• Docket Number: No. 100.,100.
• Citation: 169 A. 724
• Parties: POLACKOFF v. SUNKIN.
• Court: New Jersey Supreme Court

169 A. 724

POLACKOFF

v. SUNKIN.

No. 100.

Court of Errors and Appeals of New Jersey.

Jan. 5, 1934.

Appeal from Court of Chancery.

Suit by Moris Polackoff against Max Sunkin. Decree for defendant, and complainant appeals.

Affirmed.

On appeal from a decree of the court of chancery, advised by Vice Chancellor Fielder, who filed the following opinion:

"The complainant, a dealer in malt, hops and malt products, has two places of business, one at 17 Bloomfleld avenue, Newark, and the other at 100 Hudson street, Hoboken, at both of which he uses the trade-name 'New Jersey Malt Products Co.' He claims to be the sole owner of two labels or brands, one called 'Lion' and the other 'Canadian Club,' which he uses on merchandise sold at his stores. The defendant is engaged in the same line of business at 3 Webster street, Newark, which is nearly opposite the complainant's Newark store. He trades under the name of 'New Jersey Malt Supply' and, on some of the merchandise he sells, he uses 'Lion' and 'Canadian Club' labels similar in color and design to those used by complainant. The complainant claims priority in the use of his trade-name and he alleges that the trade-name used by defendant is so similar as to lead to confusion in the minds of those who wish to deal with complainant and results in loss of trade and damage to complainant. He seeks to have defendant restrained from using said labels and the trade-name 'New Jersey Malt Supply.' The defendant claims an equal right with complainant to the use of the labels or brands in question and priority over the complainant in the use of his trade-name and by counterclaim he prays restraint against complainant from using the trade-name 'New Jersey Malt Products Co.'

"On July 22, 1921, the complainant and one Lewis were partners in business in Newark, for the sale of malt, hops, and malt products under the trade-name 'Newark Malt Products Co.' They operated two stores, one at 79 1/2 Bloomfield avenue and the other on Orange street, near Norfolk street, and they used the 'Lion' and 'Canadian Club' labels on the goods they sold. Their business did not pay and ran but a few months, when the partnership was dissolved. The complainant claims he bought out Lewis' interest, but I do not believe that to be a fact, because there was no bill of sale, or any written evidence of such payment and also because Lewis, who was a witness for complainant, testified that the partnership just 'broke up' and that the assets were divided between the partners, the complainant taking one-half of the goods, bearing said labels, and Lewis the other half thereof, and that they divided between them such of said labels as were not pasted on cans. I believe that on the dissolution of said partnership the former partners had equal ownership in said labels and in their use. The evidence shows that they exercised such equal ownership immediately, without molestation one by the other. Upon dissolution of the partnership the Bloomfield avenue store was discontinued and the complainant continued at the Orange street store, using the two labels in connection with goods sold there, for six months, when he sold that store and opened another at 100 Hudson street, Hoboken, which he still maintains and where he uses said labels. A day or two after partnership between complainant and Lewis was dissolved, Lewis opened a store at 3 Webster street, Newark (which is the store now operated by defendant) under the old name 'Newark Malt Products Co.' and there sold the same line of goods, using thereon the two labels mentioned, until July 1, 1922, when he sold the business, including labels, caps, malt, and other supplies on hand to one Di Filippis, who thereupon changed the trade-name to 'New Jersey Malt Supply' and continued the business at the Webster street store about seven years, all the time using the new trade-name and 'Lion' and 'Canadian Club' labels on the goods sold by him, and, according to complainant's witness Thompson, complainant knew in 1928 that Di Filippis was making use of the labels. Di Filippis resold the business and stock on hand some time in 1928 to Lewis, who, with a man named Wilson, operated the same business at the Webster street store, retaining the name 'New Jersey Malt Supply,' and using said labels on the goods they sold, until December 10, 1928, when the defendant bought the business and stock in trade from Lewis and Wilson by bill of sale which, in terms, includes the good will of the business. From that time, the defendant, to complainant's knowledge, used the 'Lion' and 'Canadian Club' labels on the goods he sold and he used the name 'New Jersey Malt Supply' on goods, labels (see Schedule C annexed to the bill of complaint), and handbills and was billed under that name by wholesalers with whom he dealt. Thus Lewis and all those who followed him (including defendant) in the occupancy of the Webster street store used said brands and labels for ten years without hindrance from complainant. I think complainant and defendant now have equal rights in such labels and that complainant's prayer to restrain defendant in such use must be denied.

"Lewis used the trade-name 'Newark Malt Products Co.' in connection with the business he conducted after the dissolution of his partnership with complainant and until he sold the business to Di Filippis. What trade-name the complainant used at the Orange street store after the dissolution of the partnership does not appear, but when he ceased to operate a store in Newark early in the year 1922 and opened a store in Hoboken, he there used the trade-name 'New Jersey Malt & Hops Co.' and he used that same tradename in connection with a store he operated for a short time in 1928-29 on Springfield avenue, Newark. He says he found such trade-name too long and decided to change it to 'New Jersey Malt Products Co.' He first indicated an intention to change that name in May, 1929, while running only the Hoboken store, by filing a certificate of such...