114 Misc. 477 | N.Y. Sup. Ct. | 1921
The cause of action alleged in the complaint rests upon the question whether or not the use of the plaintiff’s surname by the defendant constitutes a violation of the Civil Bights Law (§§ 50, 51) which prohibits a corporation from using the name of a person for advertising purposes or for purposes of trade. There are no equitable considerations stated in the complaint. There is no charge of unfair competition or that the plaintiff has been specially injured in his character, reputation or property. It is alleged that the plaintiff gave the defendant permission to use the name “Pfaudler” in connection with the words “Vacuum Fermentation Company” for a period of twenty-five years but this language is not to be construed as equivalent to an allegation that a contract existed between the parties under which the defendant agreed not to use the word “Pfaudler” in connection with any corporation. Nor is there any charge of fraud. The sole question is whether or not the Civil Bights Law prohibits the defendant from using the plaintiff’s surname. The word “name” as used in the statute must mean a person’s full name. It was evidently the purpose of the legislature to prevent the use of the full name of a person by which alone he could be identified. This identification is possible in the case of the use of a portrait or picture, the use of which the statute also prohibits. It is not possible where only the surname of a person is employed. The word “Pfaudler” does not identify the plaintiff as the person whose surname has been used except to those persons who may know the origin of the company and even then it is impossible to say whether the word refers to the plaintiff or to his brother Casper, both of whom were at one time connected with the defendant’s predecessor. No cause of action is stated under the .Civil Bights Law and none existed at common law
Ordered accordingly.