Cut & Curl, Inc. v. Giovinazzo

dissents and votes to affirm the judgment. The intent of appellant to deceive is convincingly shown. In 1956 petitioner procured a New York State certificate of registration for conduct of its business under the mark of “ Cut & Curl — ■ Beauty on a Budget ” and made application to the United States Patent Office for registration of the trade-mark, subsequently granted in 1958, “ Beauty on a Budget” (with scissors design). At present it operates five salons and has entered into 14 license agreements in the metropolitan area, including two salons in Staten Island. It advertises extensively its name and mark. In October, 1966, appellant opened a shop in Staten Island under the trade name of “ Curl ‘N’ Cut Beauty Salon, No Appointment Necessary.” He used in advertising both the name “ Curl ‘ N ’ Cut ” and the slogan “ Beauty on a Budget.” He positioned the crossed letter “t” into the shape of a scissors in the word “ Cut ” on a sign on his front door, depicted in his advertising. The 1956 mark of petitioner expressly associates “Beauty on a Budget” with “the Design of Scissors”. Thus, appellant, by thought and word, completely appropriated petitioner’s mark. When promptly notified of this deception, he transposed his use of “ Beauty on a Budget ” to “ Budget your Beauty I do not think that the change undid the brazen deception.