8 Daly 375 | New York Court of Common Pleas | 1878
This action is brought to restrain the" defendants, The New York Publishing Company, from using the name “ Frank Leslie ” as part of the title of a weekly journal published by them, entitled “ Frank Leslie, Jr.’s, Sporting and Dramatic Times.” The plaintiff, Frank Leslie, has for many years been the publisher of pictorial periodicals, which, in the language of the complaint, “ have become widely and favorably known,” embracing, as weekly journals, “ Frank Leslie’s Illustrated News,” “ Frank Leslie’s Ulus tríete Zeitung,” “Frank Leslie’s J ournal,” “Fran k Leslie’s Chinmey Corner,” “ Frank Leslie’s Boys’ and Girls’ Weekly,” &c., &c.,.with others of like character published monthly, and two, annually. These publications, it is alleged, have a large, extensive and profitable sale; and by the skill and ability of Frank Leslie, and the reputation which these publications have acquired, the use of his name has become of great value.
It is alleged that there is no person of the name of Frank Leslie engaged in the publication of the defendant’s journal, and that the use of that name as part of the title of it is to mislead the public into the purchase of it as one of Frank Leslie’s publications, and divert them from purchasing those of the plaintiff, to the plaintiff’s injury.
The defendant, The New York Publishing Company, is composed of three persons, incorporated under that name, one of whom is the eldest son of Frank Leslie, who claims that his name is also Frank Leslie,-and that he has the right to
This is the law in respect to the right of two parties who have the same name, and use it as a trade-mark to distinguish an article or commodity produced by them of the like character.
The fact that a man has used his own name to designate the article he produces, and that the name has become valuable to him through the article becoming extensively known, gives him no right- to exclude any other man of the same name from affixing his name upon the same kind of article if he manufactures it. The test is whether he uses the name, honestly and fairly in the -ordinary prosecution of his business, or dishonestly to palm off his own commodity as the production of another. It remains then but to apply the law as thus stated to the facts of this case, there being no material conflict as to the facts.
The name of the plaintiff, Frank Leslie, was originally
When the defendant, who claims that his name is Frank Leslie, was a boy, his father told him that as he was his eldest son he wished him to be named after him, and accordingly directed him to take the name of Frank Leslie, which he did. This, it may be inferred, the plaintiff did, as he had himself assumed the name of Frank Leslie, and it appears that the defendant thereafter called himself, and was known to others, by the name of Frank Leslie, Junior. His father thereafter called him Frank; he signed his name as Frank Leslie, Junior, and letters—the envelopes of which were produced upon the motion—were addressed to him by his father in that name. In 1864 he was christened in the Episcopal Church at Elizabeth, New Jersey, by the name of Frank Leslie ; and the following year, 1865, was married by that name in his father's presence. His statement is that from his boyhood he has been and is still known by his wife, by his mother, and by other relations, both in conversation and in correspondence, as Frank Leslie, Junior.
After his marriage he went to Chicago with the intention of going into the publishing business there, and whilst there accepted a proposition from his father to- conduct there the western edition of the latter’s various publications. Whilst there his father began to write to him as Frank II. Leslie ; and, upon asking for an explanation of this change, he was informed by his father that he had rich relations in England who might leave him property in the name of Henry; but that, notwithstanding this, he still retained and continued to be known as Frank Leslie, Junior. After being a year in Chicago he returned to this city, where he was employed in
Whilst in his father’s employment thereafter the defendant audited bills and signed receipts in the name of Henry Leslie, and became known to many acquaintances by the name of Henry or Harry Leslie ; but in his domestic intercourse with his wife, mother, and relatives, he continued to be called and known as Frank Leslie, Junior.
In ■ 1868 he commenced the publication of a pictorial journal, entitled “ The Illustrated Dramatic and Sporting News,” which was copj-righted, and entered by him as a copyrighted publication, under the name of Henry Leslie, which he testified that he did supposing that he was prohibited by the document before referred to from using his former name, and he swears that he would never have so entered the paper, or signed receipts, if he had been aware of the facts which he subsequently ascertained. This journal was of temporary duration. After it ceased, and before he commenced the publication of the one now sought to be re
Having thus been informed by the lawyer who had read the document to him that it amounted to nothing, and that he had a right to the use of the name which he had abandoned, and no such order, after search made, having been found on the files of the court, he resumed his name of Frank Leslie, Junior; and in the new journal published by him during the present month, in connection with the defendants who have formed the New York Publishing Company, he gave that name as a part of the title of the new journal, calling it “ Frank Leslie, Junior’s, Sporting and Dramatic Times.”
None of the facts above stated are contradicted, and there is little difficulty in applying to them the law, as before stated. In the first place, as respects the defendant’s designation as Frank Leslie, Junior, it is to be observed that the use of that name by him was not, in the first instance, his act, but a name taken by him when a boy, by the desire and direction of his father; nor can his subsequent abandonment of it and adoption, to a certain extent and in certain acts, of the name of Henry Leslie, be considered a voluntary act on his part, but one done under the impression that he was prohibited, by what he was led to believe was a valid and legal order of a court, from using it thereafter. . It was certainly not reprehensible for him to assume again the name by which lie had been known from boyhood—by which he was christened and married—when he had learned that there was no
What was said by Chief Justice Abbot in rendering judgment in that case may be cited for its direct bearing upon the present case. “ A name,” lie said, 11 assumed by the volun’t-ary act of a young man at his outset in life, adopted by all -who know him, and by which lie is constantly called, becomes for all purposes as much and effectually his name as if he had obtained an act of Parliament to confer it upon him.”
That the defendant had acquired the name of Frank Leslie, Junior, does not rest upon his testimony alone, but is established by evidence of the most satisfactory kind. His wife swears that she first made his acquaintance when he was at school, at the age of 16 years, at West Poultney, in Vermont;
It is very clear upon this state of facts that the defendant is entitled to call himself Frank Leslie, Junior, and that he has the right to use that name in the title of a journal published by him, as a co-proprietor with others'. If the plaintiff has given a value to the name of Frank Leslie by the many years that it has been associated Avith the serials published by him, that does not preclude the son from using the sanie name as the title of a journal published by him, unless it is designedly used in a Avay to deceive the public, and lead persons to purchase his paper under the impression that they are purchasing one óf his father’s publications. There is nothing in the case to warrant any such conclusion. The journal published by the defendants under the name of “ Frank Leslie, Jr.’s, Sporting and Dramatic Times,” is a publication devoted
The motion for the injunction must therefore be denied.
Motion for injunction denied.