Prest-O-Lite Co. v. Brickner

Headnote

Prest-O-Lite Co. v. Brickner, 162 App. Div. 75 , reversed.

Appeal, by permission, from a judgment of the Appelate Division of the Supreme Court in the first judicial department, entered April 1Y, 1914, which ■ reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff and dismissed the complaint in an action under section 36Y of the General Business Law to recover for infringement of a trade mark. Defendant contends that the appellant had no cause- of action herein, because section 36Y of the General Business Law is unconstitutional, because the law is not available to a foreign corporation, because acetylene gas is not the subject of a trade mark under said section, because the Appellate Division has found as a fact that the appellant’s patent expired in 1910, and, therefore, the word “ Prest-O-Lite ” has become publici juris and is void as a trade mark, and finally, because the appellant’s attempt to register its description was defective, and did. not comply with the law.