136 Misc. 2d 784 | N.Y. Sup. Ct. | 1987
OPINION OF THE COURT
The petitioners pray for an order, pursuant to section 133 of the General Business Law, enjoining the use by the corporate respondents of the name "Waterford Citizen’s Party, Inc.”, or any similar name.
Section 133 of the General Business Law, in pertinent part, states: "No person, firm or corporation shall, with intent to deceive or mislead the public, assume, adopt or use as, or as part of, a corporate, assumed or trade name, for advertising purposes * * * or for any other purpose, any name, designation or style, or any symbol or simulation thereof, or a part of any name, designation or style, or any symbol or simulation thereof, which may deceive or mislead the public as to the identity of such person, firm or corporation or as to the connection of such person, firm or corporation with any other person, firm or corporation”. The section further provides that a violation of its provision is a criminal act, and actual or threatened violation of the pertinent section may be the subject of an injunction.
As the statute provides, an injunction is available upon a clear and convincing demonstration of an attempt to deceive or mislead the public. (Matter of State of New York v Bevis Indus., 63 Misc 2d 1088; Matter of Kleinhans Co. v Kleinhans’ Cleaners, 5 Misc 2d 1077.) The petitioners’ allegations fall short of a clear and convincing proof of intent to deceive or mislead. At worst, the act of incorporation was a Machiavellian attempt to usurp the position of the opposition. And if the
Moreover, there is a clear question as to whether the petitioners are the proper parties to seek injunctive relief, or have any more right to the name and symbol than the individual respondents. In its decision of February 28, 1986, the court did not recognize the petitioners as the party leadership. It only found that the Village Clerk had discretion to accept the petitioners’ nominating petitions.
Based upon the foregoing, the court denies the relief requested.