Allied Maintenance Corp. v. Allied Mechanical Trades, Inc.

• Decision Date: 04 January 1977
• Citation: 55 A.D.2d 865,390 N.Y.S.2d 101
• Parties: ALLIED MAINTENANCE CORPORATION, Plaintiff-Respondent, v. ALLIED MECHANICAL TRADES, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 101

390 N.Y.S.2d 101

55 A.D.2d 865

ALLIED MAINTENANCE CORPORATION, Plaintiff-Respondent, v. ALLIED MECHANICAL TRADES, INC., Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 4, 1977.

E. Dannett, New York City, for plaintiff-respondent.

H. C. Amron, New York City, for defendant-appellant.

Before STEVENS, P.J., and MARKEWICH, KUPFERMAN, SILVERMAN and LYNCH, JJ.

MEMORANDUM DECISION.

Judgment Supreme Court, New York County, entered on March 22, 1976, reversed, on the law and the facts, and the judgment vacated, and the complaint dismissed. Appellant shall recover of respondent $60 costs and disbursements of this appeal. After trial, a judgment of injunction was granted plaintiff-respondent against use of the name 'Allied' by defendant-appellant in its corporate title. The parties are not competitors in their own peculiar specialties relating to maintenance of buildings, nor are they likely to be. Allied Maintenance works in many fields of building maintenance, but is primarily a specialist in cleaning; Allied Mechanical Trades confines its attention to repair and maintenance of heating, ventilating and air conditioning aspects. There was no proof of palming off or deception, nor of appropriation of business or custom, nor of any intent to engage in either practice. Indeed, the court found that no one was actually deceived. Though at one time defendant had an advertising flyer listing 101 services, it is not shown to have been competitive or deceptive and, in any event, is not now extant. Defendant cannot be said to advertise at all in the usual sense; even its trucks, unlike those of plaintiff, are anonymous. In short, it may truthfully be said that it sought to enjoin defendant from doing what it is not doing. The only finding that might support an injunction was that plaintiff had acquired the benefit of a secondary meaning, but there was an absence of evidence that this was so. Plaintiff's name has not acquired such a meaning that use by another of the key word might be regarded as a palming off. (Cf. Sample Inc. v. Porrath, 41 A.D.2d 118, 341 N.Y.S.2d 683, aff'd on opn. 33 N.Y.2d 961, 353 N.Y.S.2d 733, 309 N.E.2d 133.) Though the court found a likelihood of confusion between the names, no actual confusion was demonstrated. Nor is there an implication in the use of the name of deliberately caused confusion. (Cf. Hills v. Stony Brook, 7 A.D.2d 756, 181 N.Y.S.2d 48, aff'd 8 N.Y.2d 1133, 209 N.Y.S.2d 815, 171 N.E.2d...