Stokes v. Allen — 19 N.Y. St. Rep. 58

Majority

p. 58

F. A. Stokes, Pl’ff, v. Frank Allen, Def’t.

(Supreme Court Chambers, New York County,

Filed November 9, 1888.)

Headnote

Trabe mark—Name—Right to use oe.

The plaintiff published in book form certain of the pictures and literary under-linings of the weekly journal known as “Life,” under the title of “ The Good Things of ‘Life.’” This was done with the consent of the publishers of “Life.” The defendant commenced publishing-and putting before the public a book very similar in shape and general appearance to the above, which he calls “ The Spice of Life.” This book is a reproduction of pictures and under-liniDgs from another journal, but the name of that journal is not given. Meld, the variation in the defendant’s book and title is just sufficient to give color to his claim of originality and good faith, but insufficient to give substance thereto. That the plaintiff was entitled to an injunction restraining the defendant from publishing the book called “The Spice of Life.”

Miller & Savage, for pl’ff; William H. Townley, for def’t.

Two of the plaintiffs are the publishers of the weekly journal known as “Life.” These two have agreed with the other plaintiffs to reproduce from “Life,” and publish in book form, upon joint account, certain of its pictures and literary underlinings. For several years past, these books have been thus published and sold under the title of “The Good Things of £Life.’” The defendants, who were formerly in partnership with one of the plaintiffs, and engaged with him in publishing this reproduction, are now putting before the public a book very similar in shape and general appearance, which they call ££ The Spice of Life.” This book is a reproduction of pictures and underlinings from another journal, but the name of that journal is not given. It is plain that the defendants’ object is to make people believe that their book is a continuation of the plaintiffs’ publication, and that it contains spicy extracts from the weekly journal “Life.” I have examined the specimens carefully, and am persuaded that the word ££ Life” is not used by the defendants in its ordinary, general sense; and that the statement to that effect is a pretense. Looking at the specimens, and considering the affidavits in connection therewith, it is clear' that the defendants mean people to understand that they are publishing the spice of the newspaper “Life”—in other words, the

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good things of the newspaper “Life”—and it is equally clear that people do so understand and are being deceived.

The variation in the defendant’s book and title is just sufficient to give color to their claim of originality and good faith, but insufficient to give substance thereto.

The plaintiffs, Mitchell and Miller, have established the right to the use of the name “ Life,” as applicable to their journal, and that right cannot be infringed. So all the plaintiffs have established the right to the use of the same name as applicable to the reproduction, and that right cannot be invaded. The case seems to be within the principles laid down in Hier v. Abrahams ( 82 N. Y., 519 ), Colman v. Crump ( 70 N. Y., 573 ), Matsell v. Flanagan (2 Abb. N. S., 459), and the Chatterbox Cases (21 Federal Rep., 189; 27 id., 23, and 31 id., 154), and the injunction should be continued, with costs.