49 N.Y.S. 938 | N.Y. App. Div. | 1898
We find nothing in the affidavits presented by the plaintiff to warrant the conclusion of the learned justice at special term that “the proofs established that the name adopted by the defendant for his newspaper will lead to its being confused with the plaintiff’s newspaper, and that injury to the plaintiff and deception upon the public will result.” It may be that some slight confusion will arise until the character of the two publications is clearly understood by newspaper writers and advertisers. There can, however, be no confusion on the part of sane purchasers. This possible confusion on the part of newspaper writers and advertisers may cause some' temporary inconvenience to both parties, but there is not a particle of evidence that it has caused, or is likely to cause, “injury to the plaintiff or deception upon the public.” Indeed, the only injury inferable from the facts stated in the plaintiff’s papers is possible injury to the defendant. The plaintiff’s president says that letters and a telephone message intended for the defendant have been received by the plaintiff. He does not state, nor does he even intimate, that letters or messages intended for the plaintiff have miscarried or have been delivered to the defendant. He also says that orders for advertising intended for the plaintiff are frequently addressed to the “Commercial,” and that other journals throughout the country, in quoting from the plaintiff’s paper, frequently give credit to the “New York Commercial.” The only other attempt on the plaintiff’s part to prove possible injury consists in mere expressions of opinion. Thus, Mr. James A. Hibson deposes to the probability of confusion arising out of the similarity of names, and adds that “much business, especially advertising business, may thereby be lost to the Commercial Adver-
The plaintiff’s counsel also contends that its newspaper is popularly known as the “Commercial” or “The New York Commercial,” and that the courts, to quote the language of his brief, “protect the popular name as readily as they do the real name.” Assuming the latter proposition to be correct, it does not aid the plaintiff. The fact that its newspaper, in common parlance, is known as the “Commercial” or “The New York Commercial,” may be a consideration bearing upon the question of actual or probable damage. It does not, however, of itself, give a proprietary right to the exclusive use of the adjective, regardless of any question of actual or probable injury to the plaintiff. In fact, the plaintiff does not claim the right to enjoin any use whatever of the adjective “Commercial” in connection with newspaper publications. On the contrary, it frankly admits that the defendant cannot be restrained from naming his paper “The New York Commercial List” or “Commercial American.” It would seem to follow that, even if the popular voice has given the plaintiff a property right in the popular phrase, yet the defendant cannot be restrained from naming his paper “New York Commercial,” unless his doing so misleads or tends to mislead the public, to the actual or probable in
It follows that the order appealed from should he reversed, with $10 costs, and the disbursements of the appeal, and the motion for an injunction denied, with $10 costs. All concur.