283 A.D. 869 | N.Y. App. Div. | 1954
We think the complaint states two causes of action, one relating to the plagiarism of plaintiff’s advertising and the other relating to defendants’ “Mix” sales plan and advertising. The motion to separately state and number should have been granted. But we can treat the complaint as alleging two separate causes of action and conclude that the paragraphs of the complaint relating to “Mix” are insufficient to state a cause of action and should be eliminated. The order denying the motion to dismiss should otherwise be affirmed. Orders modified as so indicated and, as so modified, affirmed. Settle order on notice. Present — Peek, P. J., Cohn, Callahan, Bastow and Bergan, JJ.; Callahan and Bergan, JJ., dissent and vote to dismiss in the following memorandum: Whatever we may think of the ethics of defendants’ trade practices, it would seem that what it was doing does not amount to unfair competition and therefore we vote to dismiss the complaint in its entirety. There can be no “plagiarism” of advertising in the public domain without copyright. [See post, p. 1030.]
