
    Carvel Dari-Freeze Stores, Inc., Plaintiff, v. George Lukon, Defendant.
    Supreme Court, Special Term, Westchester County,
    January 17, 1959.
    
      Bleakley, Platt, Walker, Hart & Frits for plaintiff.
    
      Albert M. Levert for defendant.
   James W. Bailey, J.

Plaintiff makes application for a temporary injunction in this action for a permanent injunction to restrain the defendant from using the name “ Carvel ” upon a motor vehicle used to deliver and sell ice cream products at a location other than the retail store at which defendant is authorized to sell ice cream products pursuant to its franchise.

The franchise agreement authorizes the defendant to use the name ‘ Carvel Dari-Freeze ’ ’ in the operation of a retail store at the location indicated. See paragraph 1 of the franchise agreement annexed to the complaint. Paragraph 18 of the agreement further provides that ‘ ‘ nothing herein contained shall be construed to give operator any right or license in or to the use of the Carvel name or of any symbol, device, or design of Carvel, other than as is specifically authorized hereunder or as may be hereafter authorized by Carvel in writing.” The use of the name Carvel upon a motor vehicle used to distribute Carvel products at locations other than the retail store mentioned in the agreement is in violation of the franchise in the absence of written authorization which has not been demonstrated.

Under the circumstances a temporary injunction will be granted to the extent of enjoining the use of the name “ Carvel ” upon any motor vehicle used to distribute ice cream products at locations other than the retail store designated in the agreement.

Settle order accordingly providing for a bond to reimburse the defendant for any damages which he may sustain by reason of the injunction if the court finally decides that plaintiff was not entitled to such relief.  