Since it is conceded that the defendant has the right to sell its games in competition with the plaintiff, the defendant likewise has the right, within well-defined limitations, to describe appropriately the merchandise which it offers for sale. In the present case the names used by the defendant have no greater similarity with those in use by the plaintiff than necessarily results from the circumstance that both parties are engaged in the sale of the same games.
We are also of opinion that the defendant should not be enjoined from the use of a box which in size and shape appears to be the only appropriate box for the sale of these games. (Fischer v. Blank, 138 N. Y. 244.) The plaintiff is adequately protected against unfair competition by an injunction which prohibits the use of colors, photography and other distinctive markings which are so similar to those which have been used by the plaintiff that they have a tendency to confuse the public to the plaintiff’s detriment.
On the defendant’s appeal the judgment should be modified, without costs, by eliminating those provisions which enjoin the use by the defendant of the words “ Broadcast Baseball ” or “ Broadcast Football ” and by eliminating also those provisions which enjoin the use of any box or container of the shape or form now in use by the defendant. On the appeal of the plaintiff the judgment should be modified, without costs, to provide that the defendant be directed to account. (Warren, Inc., v. Turner’s Gowns, Ltd., 285 N. Y. 62; International Latex Corp. v. Scheinberg, 263 App. Div. 861.)
As so modified the judgment appealed from should be affirmed.
Present — Martin, P. J., O’Malley, Townley, Glennon and Untermyer, JJ.
Judgment unanimously modified as indicated in opinion, and as so modified affirmed, without costs. Settle order on notice, reversing findings inconsistent with this determination, and containing such new findings of fact proved upon the trial as are necessary to sustain the judgment hereby awarded.