228 A.D. 838 | N.Y. App. Div. | 1930
Order denying plaintiff’s motion for an injunction pendente lite restraining the defendants from advertising or selling securities in violation of article 23-A of the General Business Law reversed upon the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, to the extent of restraining defendants from issuing or distributing letters or other literature utilizing the names of the publications “ Physical Culture,” “ True Story,” or any other publications of the MacFadden Publications, Inc., as an inducement to prospective purchasers to buy stock in the corporate defendant, and requiring that in all such literature as is used it be conspicuously stated that defendant B. L. McFadden, Inc., and the management thereof are in no way connected with the corporation known as MacFadden Publications, Inc., the publisher of “ Physical Culture,” “ True Story,” or with any other publications generally known to be published by MacFadden Publications, Inc., which publications may be named in the order. The record herein, particularly the exhibit attached to the complaint, discloses that the defendants are unfairly seeking to capitalize the success of the older concern, MacFadden Publications, Inc., and its magazines, “ Physical Culture ” and “ True Story,” and that the methods by which this is sought to be done tend to confuse the public mind with respect to the connection of the old concern and its magazines with this new unrelated concern with a similar name and its new magazine. While the keen and astute might not be misled, the casual average reader might readily be misled into investing his money under a misapprehension. It is the unwary of this latter type that the statute is designed to protect. Lazansky, P. J., Young, Carswell, Scudder and Tompkins, JJ., concur. Settle order on notice.
