What is the difference between a plaintiff's and a defendant's mark?

The plaintiff and his predecessors have used the mark since 1937 in conjunction with phonograph records, designed for use by teachers of dancing. Large sums of money were spent in advertising the mark which was used on phonograph records and on catalogs describing such records. The records were also advertised by means of exhibits at gatherings of dancing teachers. The plaintiff's label imitated a substantial portion of the mark, that is, the dancer on the phonograph record. Even the feminine figure and the posture in which she stands are alike. The plaintiff's mark represents a typical ballet dancer with a ruffled skirt standing with both feet together in the center of the record with her arms stretched out at a wide angle above her head. The mark of the defendant also represents a dancer in a similar skirt. She stands with her feet wide-spread on the record, and has a hood rather than a hat on. But her arms are stretched out in the same manner and at the same angle as the dancer's on the plaintiff's mark. The average person looking at the two marks would see very little

[113 F. Supp. 126]

distinction between them. See Gross v. Seligman, 2 Cir., 1914, 212 F. 930, 931-932.

[113 F. Supp. 126]