247 F. 301 | 2d Cir. | 1917
This is an appeal from an order granting aninjunction pendente lite. May 1, 1917, the suit was brought and tire affidavits show that the complainant in 1914 wrote a one-act play called “Happiness,” which he presented seven times in all at Friday matinées in the Cort Theater, New York City, in March and April of that year; Laurette Taylor having the chief part. Between May and December, 1915,, he announced extensively in the newspapers that he intended to present a three-act play under that title with Laurette Taylor in the leading role. His contention is. that in this way he has acquired a property in the word “Happiness” as a trade-mark when used in connection with a play. '
Between February 3 and 17, 1917, the New York Motion Picture Company manufactured a film at its premises in Los Angeles, Cal., upon a scenario written between January 1 and 17 of that year by C. G. Sullivan, and on March 30 gave the photoplay the title “Happiness,” without having any knowledge whatever of the complainant’s play. This photoplay was purchased by the defendant Triangle Film Corporation, was advertised to be produced with Edith Bennétt in the leading role, the first presentation to be at the Rialto Theater in Brooklyn, belonging to the Rialto Theater Corporation. April 27 the complainant notified the manager of the Rialto Theater of his exclusive claim to the title, and April 30 mailed a similar notice to the defendant Triangle Film Corporation, which was received May 1. At this time the defendant Film Corporation had expended $48,295.18 in the purchase of the play and about $4,000 in advertising. The first performance was given May 29, and by June 18, when the injunction was granted, the photoplay had been widely exhibited throughout the United States.
The dispute is solely as to the title of the play. There is no similarity whatever between the defendant’s film and the complainant’s one-act sketch in respect to the subject-matter, and there is no evidence that the defendant Film Corporation is attempting to make the public believe that its photoplay is the same as the complainant’s. The contest being as to the fights of the parties respectively, it is of no impor
We think on the affidavits in this case the motion for a preliminary injunction should have been denied. Our view is, not that the affidavits show that the complainant had abandoned his rights in the title “Happiness,” but that they do not show that he had ever obtained a prior right to or any monopoly in the word because of seven matinée performances of a one-act sketch in New York City in 1914. The word “Happiness,” being public property, must, in order to acquire a secondary significance, have been used generally in connection with a play, and so have become known to the public said to be likely to be misled, viz., the public throughout the United States.
The order is reversed.