Mastro Plastics Corp. v. Emenee Industries, Inc.

Order, entered on February 20, 1963, denying defendant’s motion to dismiss the second amended complaint for insufficiency, unanimously affirmed, with $20 costs and disbursements to the respondent. The second amended complaint alleges a violation of section 43-a of the Lanham Act and seeks remedies, thereunder. It is alleged that the defendant is engaged in interstate commerce; that defendant’s merchandise is inferior to the sample obtained from the competitor plaintiff; that defendant employed, in connection with such merchandise, “ false description or representation * * * tending falsely to describe or represent the same ” in that it represented it would make shipment as per sample; and that plaintiff has been damaged as a result thereof. These allegations suffice to make out a cause of action under the Lanham Act (cf. L’Aiglon Apparel v. Lema Lobell, Inc., 214 F. 2d 649 ; Parkway Baking Co. v. Freihofer Baking Co., 255 F. 2d 641, 648-649 ). The act defines a new civil wrong and the prior dismissal of the original complaint because the common law afforded no remedy to a competitor where the wrong merely resulted in a diversion of customers without confusion or palming off (Mastro Plastics Corp. v. Emenee Ind., 16 A D 2d 420, affd. 12 N Y 2d 826) is of no significance. Concur — Botein, P. J., Breitel, Rabin, McNally and Stevens, JJ.