Citation Numbers: 39 Misc. 2d 454
Judges: Cooke
Filed Date: 2/25/1963
Status: Precedential
Modified Date: 2/5/2022
This is an application pursuant to section 964 of the Penal Law to restrain respondent from using the names “ Troy Glass Co.”, “ Troy Plate Glass Co.”,<£ Green-berg’s Troy Plate Glass Co.”, “ Troy Window & Glass Co.”, “ Troy Glass & Mirror Works ”, “ Troy Glass & Metal Go.”, any other variation, simulation or approximation of such names and any combination of the words “ Troy ” and “ Glass ”.
It appears from the papers presented: that respondent is the son of Samuel Greenberg who conducted a glass business under the name of “ Troy Plate Glass Co.” at 428-430 River Street, Troy, New York, for approximately 40 years until his death on April 3,1959; that the father willed the business to his wife, the mother of respondent, who on April 28, 1959 filed a certificate
It also appears that on August 30, 1961 petitioners (who are the officers and principal stockholders of Bakerian & Palmer Glass and Mirror Co., Inc., a corporation engaged in the glass business since 1955 and operating from an address in Watervliet) caused to be filed in the Albany County Clerk’s office a certificate of doing business under the assumed name of “ Troy Plate Glass Company”; and that petitioners have advertised by different methods under the name ‘ ‘ Troy Plate Glass Company ”, including a line insertion under the said assumed name in the yellow pages of telephone directories.
Although petitioners indicate that they have used the name of “ Troy Plate Glass Company ” on pencils, calendars and in the telephone directories, it is significant to note that there is no factual showing in the papers submitted that they have otherwise used it in operating their business such as on signs at their place of business or on trucks, business stationery, tax returns, insurance polices, bank accounts, bids and the like. By the same token, the fact that respondent did not file a certificate for the assumed name of “ Troy Plate Glass Co.” is -of interest.
Section 964 of the Penal Law makes it a misdemeanor for a person or corporation, with intent to deceive, to use a name for advertising or other purposes which may mislead the public as to the identity of the party using it and the statute also provides an expeditious civil remedy for an actual or threatened
Here, the papers submitted reveal a substantial controversy as to whether respondent acquired the title or right to the use of the name of “Troy Plate Glass Co.” from the transferee of the trustee in bankruptcy. Respondent’s transaction with the purchaser from the trustee provides some basis for a claim of justification with respect to the names in question and tends to negate an intention to deceive the public. There is a question as to whether the intention to deceive and mislead the public is on the part of petitioners or respondent.
Petitioners’ application is denied, without prejudice to such other proceeding or action as petitioners may see fit to institute.