Cornell University v. Messing Bakeries, Inc. , 2 A.D.2d 940 ( 1956 )

Appeal from an order of the Supreme Court, Tompkins County, making certain directions at the foot of the judgment herein and denying the defendant’s cross-motion to modify a part of the judgment. A judgment had been entered in this court and affirmed by the Court of Appeals, prescribing the manner in which the defendant would be permitted to use the words “ Cornell Formula Bread ” or “ Cornell Recipe Bread ” and forbidding the defendant to use those words or similar ones enumerated in the judgment in any other manner and directing the defendant to cancel certain trade-mark registrations (285 App. Div. 490, affd. 309 N. Y. 722). The plaintiff applied for an order at the foot of the judgment directing the defendant to amend certain trade-mark registrations and further directing the defendant to change the wrappers and advertising material used by it so as to comply with the terms and conditions of the judgment. The order issued by the Special Term on the plaintiff’s application seems to us, in some respects, to go beyond the provisions of the judgment. Paragraph (1) of the order should be modified so as to strike out the words “Enriched White” from the permitted trade-mark so that the defendant may register the trade-mark “ Messing Cornell Recipe Bread ” or any . other trade-mark containing the words “ Cornell Recipe Bread ” so long as the name “ Messing ” is prefixed thereto. Paragraph (4) of the order should be stricken out. It does not seem to us that the use of a rectangular red background for the words “ Cornell Recipe ” in white lettering is a violation of the provisions of the judgment, forbidding the use of “ pennants, flags, or others devices or symbols or words indicative of a college or university except as above authorized”. The defendant made a cross motion to amend the judgment so as to permit it to use the words “ Cornell Recipe ” on packages of doughnuts sold by it. The denial of defendant’s cross motion seems to us to have been proper, in the absence of any showing that the plaintiff had extended permission to other bakers t.o use the words “ Cornell Recipe ” in the marketing and sale of doughnuts or of other bakery products other than bread. The order should be modified, however, by providing that the denial of the cross motion is without prejudice to its renewal upon a showing that such permission has been extended to others. Order appealed from is modified accordingly and, as so modified, is affirmed, without costs. Settle order on notice. Bergan, J. P., Coon, Halpern, Zeller and Gibson, JJ., concur.