282 A.D. 200 | N.Y. App. Div. | 1953
Dissenting Opinion
(dissenting in part). After a four-day trial, the trial court found: (1) that plaintiff had no common-law right to the use of the word “ Eerie ” as the title of its so-called “ horror comic ”; that plaintiff failed to establish as a fact that its title had acquired a secondary meaning and a title that has acquired no secondary meaning is descriptive and open to all; that on the basis of all the credible evidence plaintiff had
The evidence sustains the finding of the trial court that all these so-called “ horror comics ” feature on the colored title page in the front of the books a praeternatural monster and a terrified female. Accordingly, there is no proprietary right in any such horrendous combination. That is the stock in trade of the cover of all such “ comics ”. Plaintiff’s own .'witness, Diamond, admitted that in the course of his experience he never heard customérs request a particular comic by particular title and that the way such comics are bought is that the potential buyer thumbs through as many different titles as he can and selects that comic which for some reason or other appeals to him or he doesn’t purchase any and puts them all back on the stand.
Plaintiff brought out five issues of the Eerie horror comics. Defendants produced but one issue of “ Eerie Adventures ”,
Peck, P. J., Glennon and Breitel, JJ., concur in Per Curiam opinion; Dore, J., dissents in part, in opinion.
Judgment modified in accordance with the opinion herein and, and so modified, affirmed, without costs. Settle order on notice.
Lead Opinion
We think that the adoption by defendants of the title “ Eerie,” the same as that previously employed by plaintiff, in a magazine which also so closely duplicated the size, format, design and illustrated cover of plaintiff’s magazine in the same “ comic ” field was bound to be confusing and constituted unfair competition.
Recognizing that plaintiff had no right to a monopoly on the use of the word “ Eerie ” and that plaintiff’s use of the name had not achieved a secondary meaning in behalf of its magazine, we still think that defendants were not entitled to duplicate plaintiff’s product to the point that there would be no obvious distinction between the two to the- running eye.
We do not regard the decision in Pocket Books, Inc., v. Meyers (292 N. Y. 58) as indicating a contrary result. The books there involved had varying titles as well as distinguishing marks and confusion would be unlikely. Here there is identity of title and subject without sufficiently distinguishing features.
Plaintiff is entitled to an injunction against defendants’ use of the name “ Eerie ” in the “ comic ” field in connection with a magazine which in design and appearance simulates plaintiff’s “ Eerie ” magazine.
Plaintiff has made no such showing of damage, however, as to justify the reference ordered or the award of more than nominal damages.
The judgment on both plaintiff’s and defendants’ appeals should be modified accordingly, without costs. Settle order.