30 Misc. 2d 837 | N.Y. Sup. Ct. | 1961
Schwartz, alleging that he does business as Glad Record Company, sues to restrain Lionel and Gladys Hampton, individually, and as copartners. He complains that these defendants infringe upon his rights to the exclusive use of the trade name for his Glad Record Company and its product, Glad Records.
There is insufficient evidence to establish the plaintiff’s case and the defendants may have judgment of dismissal, with costs.
There is no evidence at all of any violation of the plaintiff’s rights by the codefendant Lionel Hampton. In fact, there is neither allegation nor evidence of any defendants’ partnership, as it is stated in the caption of the complaint.
True, the plaintiff, through his predecessor in interest, used the Glad name first. On the other hand, the defendant Gladys Hampton registered the name in New York County a month and one half ahead of the plaintiff. But first user of a trade name composed of common words acquires no special preference thereby. (Ball v. United Artists Corp., 13 A D 2d 133, 137, citing Avon Periodicals v. Ziff-Davis Pub. Co., 27 Misc 2d 160, 162, mod. 282 App. Div. 200.) While the insignificant $80 business of the plaintiff’s predecessors is of not much importance here, one way or the other, nor is their seemingly total inactivity in 1959 controlling, still it operates against the probability that plaintiff’s use of the word “ Glad ” has any significance for his business or its product. Words of common speech, like glad, are in the public domain, available to all. Only when by reason of use and association with particular goods or a particular trade or business may they acquire a special or secondary meaning to have protection. (Neva-Wet Corp. v. Never Wet Proc
The plaintiff fails to establish his company as a successful rival which by application of a generic word of general use and description, for its product, has acquired a secondary meaning of association with business and product. Lacking that, it fails to show unfair competition, confusion and deception, a palming-off by the defendants of their product as that of the plaintiff. Furthermore, it would seem that in the field, deception would be well nigh impossible, the interest of the user being in the artist rather than the artisan, the performer rather than the record producer. (Cf. Ball v. United Artists Corp., supra, p. 142, citing Tiffany & Co. v. Tiffany Prods., 147 Misc. 679, affd. 237 App. Div. 801, affd. 262 N. Y. 482; Philadelphia Stor. Battery Co. v. Mindlin, 163 Misc. 52; General Shoe Corp. v. Rosen, 111 F. 2d 95.) There has been no showing of fraud and imposition to be restrained. (Neva-Wet Corp. v. Never Wet Processing Corp., 277 N. Y. 163, 169, supra.)