206 Misc. 1087 | N.Y. Sup. Ct. | 1954
Some time prior to March, 1954, a publishing concern known as Triangle Publications was the owner, through purchase, of the name Quick as a magazine title. At that time it decided to abandon the use of the name. Plaintiff O’Connor & Gordon, Inc. learned of the abandonment and sought to acquire the name. Triangle Publications took the position that the name having been abandoned it had nothing to sell.
Plaintiff then took steps to acquire the name. It got out a newsletter of one sheet which purported to be a weekly publication selling for 15^ a copy. Of this about 100 copies were printed, the first issue being dated May 17, 1954. It was called Quick. The newsletter was a superficial rewriting of a few news items from prominent newspapers and obviously was not a serious attempt to launch a publication of any kind. Copies were sold to employees in plaintiff’s office and were mailed to a list of people, at least one in each State of the union. This list was supplied by Trade Mark Service Corporation and the mailing was for the purpose of obtaining registrations in the
Meanwhile defendant, also a magazine publisher, had learned of Triangle Publications’ abandonment of the name. After verifying the fact it proceeded to prepare for publication a magazine generally similar to the one formerly published by Triangle Publications under the name Quick. By July 21st, its preparations were in an advanced stage. On that day it heard about plaintiffs’ activities. It investigated and discovered that the plaintiffs’ magazine had not yet gone to press. Thereupon it proceeded with extraordinary haste and succeeded in getting its magazine printed and on the newsstands by July 28th.
In September, 1954, plaintiffs put out a third and last issue of the newsletter. With this the newsletter was discontinued and the money for the sole subscription returned to the subscriber.
On these facts both parties seek to enjoin the other from using the name Quick. There are obstacles in the way of both. Plaintiffs acquired no rights from the publication of the newsletter. This was not a commercial user; it was purely pro forma, for the sole purpose of acquiring rights by aping the means by which such rights are acquired. Such pretense is not an
Defendant on the other hand was well aware of plaintiffs’ activities and preparations. It knew that by using the name in question it was invading doubtful territory. It sought by speed of publication to cut off whatever rights plaintiffs might acquire through legitimate use. The situation is distinct from that presented by an earlier publication in good faith. There, even a short period of prior publication gives rights. But this case provides an instance where the race is not to the swift.
Judgment is for defendant on plaintiffs’ complaint and for plaintiffs on defendant’s counterclaim.