Citation Numbers: 146 Misc. 629
Judges: Schenck
Filed Date: 3/15/1933
Status: Precedential
Modified Date: 1/12/2023
The defendant moves for judgment dismissing the complaint herein on the ground that it does not state facts
That in 1924 he was incorporated in the State of New York under the name of “ King Jazz and His Orchestras, Inc.,” and thereafter by publicity and advertising exploited the name of “ King Jazz ” and “ King Jazz and His Orchestras,” and thereby built an exclusive and valuable good will in connection with such names and business; that since 1915 in the exploitation of these names and his business, he has played at radio stations for electrical transcriptions and has had engagements in the States heretofore mentioned, and in addition in the States of Ohio and Pennsylvania, and in Canada; that by the use of these names the plaintiff has become known to the musical profession and public, and that these names thereby acquired a meaning distinctive to the plaintiff and his orchestras.
Plaintiff further alleges in his complaint that the defendant herein since 1930 has appropriated and advertised himself and his orchestras under the name of “ King Jazz,” and particularly so throughout the territory in which the plaintiff has appeared; that such use by the defendant has misled and deceived the public and in substance created a competition against the plaintiff with the alleged result
A person’s right to a distinct designation may be established under the doctrine of secondary meaning, and he may through user become entitled to protection against infringements especially when such use by another results in unfair competition. (Kayser & Co. v. Italian Silk Underwear Co., 160 App. Div. 607; Fishel & Sons v. Distinctive Jewelry Co., 196 id. 779; Albany Packing Co. v. Crispo, 227 id. 591; affd., 253 N. Y. 607.) The existence or the extent of the right, if any, thus acquired, depends upon the proof of facts which plaintiff must establish upon the trial. The decisions of our courts indicate the character of the evidence necessary to sustain such a cause of action, and it is not necessary here to refer to the elements of proof essential for the plaintiff to make out his case. I do hold, however, that proof of the allegations contained in the complaint may establish a cause of action and that the issue presented on this motion cannot be disposed of on the theory that there will be a failure of such proof.
Order may be entered denying the motion, with ten dollars costs.