279 A.D. 51 | N.Y. App. Div. | 1951
Plaintiff undoubtedly has an exclusive right to publish a picture magazine under the title “ Life ” provided it adheres to the style and format of its registered trade-mark.
The word ‘1 Life ’ ’ as used by defendant as part of its name ‘1 Life Color Laboratory, Inc., ’ ’ is employed solely in its descriptive sense and without conveying any other meaning. The trial court properly found no evidence of any damage to plaintiff, or that defendant had any intention of “ palming off ” its service as that of plaintiff’s, or that any person has ever been confused by the similarity of names so as to form the belief that defendant’s service was furnished by or rendered under the sponsorship of plaintiff.
However, we do not agree with the conclusion that defendant’s use of the word “ Life ” as part of its name in connection with development and printing of color photographs is likely to cause confusion as to source or origin, nor do we think that plaintiff has acquired a secondary meaning in the word “ Life ” in the field of photography to the extent that its use as part of the name of defendant would constitute unfair competition. There was, therefore, no basis for a decree enjoining defendant from using the word “ Life ” in its corporate name or business.
The judgment so far as appealed from should be reversed, with costs to the appellant and the complaint should be dismissed on the merits.
Settle order containing findings of fact and conclusions of law accordingly.
Glennon, Cohn and Callahan, JJ., concur; Peck, P. J. and Dore, J., dissent and vote to affirm.
Judgment reversed, with costs to the appellant. Settle order on notice.
