
    Lerner Stores Corporation, Plaintiff, v. Harry Lerner and Others, Defendants.
    Supreme Court, New York County,
    September 9, 1927.
    Trade-marks and trade names — unfair competition — defendant • is enjoined from using his last name only in connection with new business similar to plaintiff’s business.
    The defendant, whose surname is the same as the first name of the plaintiff’s corporation, is enjoined from using his surname only in connection with a new business which he has started in the vicinity of plaintiff’s place of business and which is similar to that conducted by the plaintiff. He may, however, use his surname if he prefixes his first name thereto and uses a different type of lettering from that used by the plaintiff.
    Motion to restrain defendant from using his own name in connection with the conduct of his business.
    
      Bertram L. Marks [Samuel D. Cohen of counsel], for the plaintiff, for the motion.
    
      Edward E. Rosenblume, for the defendants, opposed.
   Fea nkenthaler, J.

The undoubted right of defendant Harry Lerner to use his own name in connection with the conduct of his business is subject to the limitation that he refrain from conduct calculated to mislead the public into confusing his business with that conducted by plaintiff. The emphasis on the surname “ Lerner ” and the use of type strikingly similar to that used in some of plaintiff's stores both seem to substantiate the charge that defendant is endeavoring to obtain the benefit of the reputation and good will built up by the plaintiff. His statement that at the time he opened his store, about three months ago, he was not aware that plaintiff had any stores in Brooklyn, seems somewhat strange in view of the extent of plaintiff's reputation and the fact that defendant is engaged in the very same business and would be likely to know of large competitors. Defendant cannot be injured in his newly opened store by being required to take steps to obviate deception and call to the attention of the public the lack of connection between his establishment and those operated by the plaintiff. He will, therefore, be enjoined from operating the store under the name of Lerner ” unless his first name is prefixed thereto and a different type of lettering used from that employed by plaintiff. The motion is, therefore, granted to the extent indicated. Bond $2,000. Settle order.  