Arnheim v. Arnheim

In an action to restrain the use of a name as a trade-mark in business, the inquiry must determine whether the defendant simulated that name in such a manner that, with the combination of other business devices, the good will and trade, fairly earned in the past, of him who makes the complaint, would be naturally diverted and impaired, or the public be deceived. Every one may use his own name in some form, but with that distinction of identity which prevents deception, and harmonizes with a business conducted on its own merits, and which does not derive a part of its sustenance from the reputation earned by the foresight and industry of another. Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462 , 39 N. E. 490 ; Devlin v. Devlin, 69 N. Y. 212 ; Meneely v. Meneely, 62 N. Y. 427 ; Caswell v. Hazard, 121 N. Y. 484 , 24 N. E. 707 . Twenty years before the advent of the defendant into the tailoring business in Yew York City, the plaintiff, Marks Arnheim, began a small trade in tailoring in the Bowery, and, by undoubted exercise of persistence combined with skill, swelled that business into one of over half a million a year. In 1892 he erected an expensive structure on the corner of Ninth street and Broadway, where he has since continued, giving up the Bowrery store in 1895. He advertised his business under the name of “Arnheim, the Tailor,” and “Arnheim, Tailor,” up to 1895, dropping the designation of the name of the business conducted after that period, and conducting it under the name of “Marks Arnheim,” as, by this period of 18 years’ steady dealing in that branch of trade, his class of business had become so identified with his name that the necessity no longer existed to designate the character of his business concern. He had spent large sums in advertising in the nev/spapers, in posters, in forms of letterheads, billheads, and receipts, all of which distinctively connected his own name with his trade. In the year 1897 the defendant, coming from Chicago, opened •a store on the corner of Thirty-Seventh street and Broadway, at once branching out as “Arnheim, the Tailor.” She combined her business advertisement under that name with the issue of receipts and guaranties very similar to those of the plaintiff, ordering them from the same people who did the plaintiff’s work, used similar paper boxes, ordered from the same manufacturer, and issued similar catalogues. By the use of a stereopticon at Broadway and Thirty-Yinth street, she exhibited a photograph of the plaintiff, with the words “Now at Broadway and Thirty-Seventh street, southwest corner,” and substantially arranged the exterior and interior of her store, so far as was practicable, in a similar manner to that of the plaintiff. It is easy to see that these devices, in conjunction with the use of the name, would directly tend to divert a part of the plaintiff’s business, and confuse those wrho would be attracted to that business from the reputation and name it had acquired. There is no proof to offset the effect likely to be produced, except the arrangement of some