The opinion of the court was delivered by: BARD
The complainant, owner and operator of a restaurant and cafe named "The Stork Club" in New York City, at which food, beverage, entertainment and dancing facilities are furnished the public, instituted this action against the defendants to enjoin and restrain them and each of them, individually and otherwise, from conducting a restaurant, cafe or night club in Philadelphia or elsewhere under the name of "The Stork Club" or any name similar thereto, with or without insignia indicating a stork. The complainant also seeks to have the defendants restrained from using such name or insignia as an appurtenance to a trade or business in any manner whatsoever, to have judgment entered against the defendants for $10,000 damages, to have the defendant Marcus enjoined to cancel his registration in Pennsylvania of the name "The Stork Club", to have enjoined the future registration of the same or similar name anywhere, and to have granted such further relief as the court may deem just and proper.
I make the following special findings of fact:
1. The plaintiff is a corporation incorporated under and existing by virtue of the laws of the State of New York, with its principal place of business at 3 East 53d Street, City and State of New York.
2. The defendants are all residents and citizens of the State of Pennsylvania.
3. The amount in controversy is in excess of $3,000 exclusive of interest and costs.
4. The plaintiff has, since on or about August 15, 1934, continuously used the name "The Stork Club" as the name under which it has conducted a restaurant and cafe, supplying food, beverage, music, and dancing facilities, at 3 East 53d Street, New York.
6. Since on or about August 15, 1934, the plaintiff has used, in conjunction with its use of the name "The Stork Club" in its business, an insignia consisting of a stork, standing on one leg and wearing a high hat and monocle.
7. The plaintiff has expended considerable effort and large sums of money, approximately $200,000 in the last five years, advertising and otherwise promoting its business by various methods and through various media. Some of the advertising and promotion has been directed to Philadelphians, through the mail and by personal contact.
8. The plaintiff's "The Stork Club" has been referred to and written of in various periodicals and other printed matter of local and national circulation a large number of times.
9. The plaintiff employs approximately 140 people to provide several hundred customers each day between 11:30 A.M. and 4 A.M., with relatively high-priced and high-quality food, beverages and entertainment, which service yields an average gross income of over $500,000.
10. The plaintiff's restaurant has been and now is patronized by persons both from in and about the City of New York and from the United States at large, including the Philadelphia area.
11. The plaintiff's restaurant has been and now is patronized by persons of some prominence in social, literary, artistic, professional, commercial, official and cinematic circles.
12. The plaintiff's restaurant is known as "The Stork Club" to a large number of people in and about Philadelphia, the great majority having learned through the plaintiff's advertising ...