Ramopa Co. v. A. Gastun & Co., Inc.
| Citation | 278 F. 557 |
| Parties | RAMOPA CO. v. A. GASTUN & CO., Inc. |
| Decision Date | 27 January 1922 |
| Court | U.S. District Court — Southern District of New York |
Barry Wainwright, Thacher & Symmers and A. C. Charles, all of New York City, for defendant.
The first question in the case is whether there should be a decree of injunction. On that, I am of the same opinion as I was when the case was up for preliminary injunction. All the witnesses agree that these goods in the Levant are sold more by the name than by the 'chop.' When I say all of the witnesses, I should not forget the defendant Gastuniotis. He differs in that respect, but he is the only one. I find the fact to be that it is by the name that the goods are sold, by which I mean sold either to the consumer or to the small retailer. These are, of course unfamiliar with the English language, and probably relatively unfamiliar with the Latin script, and to them the rest of the words on the head end are entirely meaningless. But the word 'Ramopa,' although it is written in a language foreign to them, and even in a character foreign to Turks, they can fix in their minds. To argue that the difference arising from the transposition of the letters 'R' and 'M' is a sufficient distinction seems to me beyond any fair entertainment whatever. I have no doubt that confusion would be likely to arise, and, if so, the defendants must be prevented from imposing the risk of it upon the plaintiff.
The question next comes up of the accounting. Of course, the accounting must go from the time of the notice on May 3 1921; but that may well result in nothing. Perhaps the defendants shipped no more goods under that trade-mark after that time. The real importance of the case to both sides arises on the question whether the accounting shall go back further. There is no direct evidence of notice prior to May 3d of last year. Apparently the infringing word was devised and began to be used at the very end of 1918, so the defendants were using it about 2 years and 4 months before they got notice, and the issue is whether the circumstantial evidence is cogent enough to overbear the denial of Gastuniotis that he had any knowledge.
Just what was the situation in respect of this name? The plaintiff had a business of substantial amount in Constantinople and the Piraeus in the year 1917. They sold a little short of 1,000,000 yards of coarse cottons under their trade-mark. That was a good business. In the year 1918 it fell to about half what it had been in 1917, but still it might well be supposed to have possibilities, and in fact subsequently realized possibilities beyond what I suppose were even their expectations. They marketed their goods, as apparently every one must in the Levant, by employing importing agents who got orders, which come direct to New York, where they are filled. The agents were themselves Greeks, and they circulated among the importers, drumming up business. The defendants are also exporters and importers, who have offices or agencies in the...
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