American Yellow Taxi Operators, Inc. v. Diamond, 202 A.D. 490

202 A.D. 490 | N.Y. App. Div. | 1922

Page, J.:

The order in this case is much broader than the decision of the learned justice would seem to warrant, and in this respect conflicts with his decision in American Yellow Taxi Operators, Inc., v. Barry (202 App. Div. 837), argued simultaneously with this appeal and decided herewith.

The plaintiff operates taxicabs painted yellow or orange and black, upon the panel of the door of which in black letters appear the following: On the first line “ American ” in small letters, on the second “ Yellow,” and on the third “ Taxi ” in large prominent letters; on the fourth, in letters of the same size as the first line, “Operators, Inc.;” on the fifth letters slightly larger than the fourth, “ Lenox 2300.”

The defendants operate taxicabs of identical design, in fact they are bought from the same manufacturer as plaintiff’s, painted with the same colors similarly arranged; and on the panel of the door in black letters of the same size and character and in evident imitation of the plaintiff’s design there is painted on the first line “ At your service,” on the second “ Yale,” on the third “ Taxi,” and on the fourth “ Corporation.” Further, on plaintiff’s and defendants’ cars, in the same position immediately behind the hood, are painted numerals in exact size and style.

When the plaintiff first commenced the operation of its cabs, it had on the panels of the doors of its cabs a circle inclosing the words “ Yellow Taxi Lenox 2300 ” with a large Y superimposed at the top. Defendants adopted a similar design. When plaintiff changed the inscription on the panels of the door to the present form, defendants also changed the inscription on the panels of the doors of their cabs in simulation to those of the plaintiff. These facts show that the defendants are imitating the marking on the plaintiff’s cabs for the purpose of deceiving the public and to divert custom from the plaintiff, and are operating their cabs in competition with the plaintiff.

The plaintiff, however, has not demonstrated, with sufficient certainty to justify the inclusion in the preliminary injunction, its exclusive right to use the color scheme or combination of the colors yellow or orange and black, arranged in the manner employed by the plaintiff. It is admitted that this color scheme was used in New York city for years before plaintiff was incorporated or commenced business operations, by corporations and individuals with whom the plaintiff had no connection or successionary rights. This color scheme is largely used in other cities throughout the United States. Identical taxicabs in make and color were exposed for sale in New York city by the New York Yellow Cab Company, the sales agent for the Yellow Cab Manufacturing Company, who make a specialty of producing taxicabs, and advertise their product, showing this arrangement of colors. The plaintiff and defendants both purchased the taxicabs from this company, and have not been given any exclusive right to use this combination, even if said manufacturing company could grant any such license. Therefore, the injunction order should be modified by striking therefrom the words “ finish, color or combination of colors, get up, style or dress,” and as so modified affirmed, with ten dollars costs and disbursements to the appellants. •

Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.

Order modified as stated in opinion and as modified affirmed, with ten dollars costs and disbursements to appellants.