152 N.Y.S. 631 | N.Y. App. Div. | 1915
The question submitted for our determination is whether plaintiff is entitled to a judgment restraining the defendants from using the name “Apthorp ” in connection with its hotel. The facts submitted do not state that the plaintiff has suffered or will at any time in the future suffer any money damages whatsoever from the use by defendants of the word “Apthorp.” The plaintiff’s sole ground for relief arises from the inconvenience suffered by plaintiff’s tenants, guests and the public arising from the similarity of names. Plaintiff’s immunity from money loss is undoubtedly due to the dissimilarity of his apartment house and defendants’ hotel, and to the fact that no one seeking such accommodations as plaintiff’s building affords has ever mistaken it for defendants’, or has been betrayed into becoming a guest or a tenant of the defendants, believing that he was a tenant of the plaintiff. I cannot find nor am I referred to any case where, under these, or under any other circumstances where no money damage is shown, an injunction has ever been granted. Hence inconvenience or annoyance, so far as I can find, has never been held sufficient, and on no principle applicable to such situations as the present could it be. The plaintiff has no exclusive right to the use of the word “Apthorp” as a trade name. Although there is a distinction in certain respects between trade marks and trade names where injunctions are concerned, the rules applicable in the case of each are similar. (Koehler v. Sanders, 122 N. Y. 65, 72.) Plaintiff’s right, at most, is to restrain others from using the name “Apthorp ” in connection with any apartment house or the letting of apartments under such circumstances as are calculated to induce the public to believe that their building or apartments are those of the plaintiff. The situation must, as we held in Simplex Automobile Co. v. Kahnweiler (162 App. Div. 480), be one which discloses that competition exists, for without competition there can be no unfair competition, and hence no invasion of any equitable right. It is manifest that if defendants have not infringed any right of the plaintiff, any
The judgment should be for the defendants, with costs.
Ingraham, P. J., McLaughlin and Laughlin, JJ., concurred; Dowling, J., dissented.
Judgment ordered for defendants, with costs. Order to be settled on notice.
