280 A.D. 189 | N.Y. App. Div. | 1952
This appeal is from a judgment permanently enjoining the defendant, its agents and officers, from the use of the word “ Wholesale ” in its corporate name and from using it on its catalog and other advertising media.
Plaintiff was incorporated in March, 1935, under its present corporate name; defendant was incorporated in January, 1935, under the name of Boofers Supply Co., Inc. Defendant originally dealt in roofing supplies, but in 1949, when it enlarged its line of products to include building materials, it changed its corporate name to Wholesale Building Materials Corp.
The word “ Wholesale ” is not susceptible of appropriation or exclusive use in the plaintiff, nor can it be held to have acquired a secondary meaning such as to prevent its use coupled with the words “ Building Materials Corporation ” in defendant’s corporate name. We conclude that the injunction was improperly granted. (See Eastern Constr. Co., v. Eastern Engineering Corp., 246 N. Y. 459; Buffalo Typewriter Exchange v. McGarl, 240 N. Y. 113; Neva-Wet Gorp. v. Never Wet Processing Corp., 277 N. Y. 163; Material Men’s Mercantile Assn. v. New York Material Men’s Mercantile Assn., 169 App. Div. 843, affd. 224 N. Y. 670; Material Men’s Mercantile Assn. v. Material Men’s Credit Agency, 191 App. Div. 73, and Romeike, Inc. v. Romeike & Co., 179 App. Div. 712, affd. 227 N. Y. 561.)
The judgment appealed from should, therefore, be reversed on the law and facts, with costs, and the complaint dismissed, with costs.
All concur. Present — Taylob, P. J., McCubh, Kimball, Pipes and Wheeleb, JJ.
Judgment reversed on the law and facts, with costs, and complaint dismissed, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings and conclusions made.