Party House Caterers, Inc. v. Weingarten

• Decision Date: 05 April 1956
• Citation: 152 N.Y.S.2d 788,2 Misc.2d 151
• Parties: , 109 U.S.P.Q. 320 PARTY HOUSE CATERERS, Inc., v. Benjamin WEINGARTEN.
• Court: New York Supreme Court

Page 788

152 N.Y.S.2d 788

2 Misc.2d 151, 109 U.S.P.Q. 320

PARTY HOUSE CATERERS, Inc., v. Benjamin WEINGARTEN.

Supreme Court, Special Term, Queens County, Part III.

April 5, 1956.

Weisman, Celler, Allan, Spett & Sheinberg, New York City, for plaintiff.

Benjamin Kopf, New York City, for defendant.

PETTE, Justice.

Plaintiff instituted this action for an injunction and consequential damages alleged to have been sustained as a result of an alleged unfair competition in the user of the name 'Party House' and 'Party Time'.

The facts may be briefly stated thus: Plaintiff, since March 16, 1948, was engaged, and still is engaged, in the catering business, and in the companion business of furnishing and renting chairs, china, etc., for party needs; and operating under the name of 'Party House Caterers, Inc.' The defendant and his predecessor, since 1938, have been engaged in the party-supply business under the name of 'Academy Chair Renting Co.' and subsequently adopted the name of 'Party Time' and 'Party House' without engaging in catering. Plaintiff alleges that the user of the word 'party' in the defendant's trade name had deceived and confused the public with the plaintiff, and allegedly causes damage to plaintiff's business.

It is obvious from the plaintiff's corporate title 'Party House Caterers, Inc.' and the defendant's trade name 'Party Time' and/or 'Party House', the names are entirely different on their face, except for the common user of the word 'party'. The defendant admittedly is not a caterer, nor does it advertise as such, its primary business being that of rental of chairs, table, china, glass, linens, etc.

During the course of the trial, plaintiff's claim for alleged money damages was withdrawn, and the issues to be resolved pertain only to the question of injunctive relief.

Plaintiff-corporation has no right to a monopoly of the word 'party', and long user thereof, in and of itself, will not suffice to attach a secondary meaning to such word, which is general and descriptive in character. In the similar case of Hotel Syracuse, Inc., v. Motel Syracuse, 283 App.Div. 182, 127 N.Y.S.2d 485, 487, the Appellate Division, reversing the lower court and dismissing the complaint, held:

'The law of trade names is but part of the broader law of unfair competition, the general purpose of which is to prevent one person from passing off his goods or his business as the goods or the business of another. American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317. 'Whether the court will interfere in a particular case must depend upon circumstances, the identity or similarity of the names, the identity of the business of the respective corporations, how far the name is a true description of the * * * business carred on, the extent of the confusion which may be created or apprehended, and other circumstances which might justly influence the judgment of the judge in granting or withholding the remedy.' Chas. S. Higgins Co. v. Higgins Soap Co., 144 N.Y. 462, 469-470, 39 N.E. 490, 492, 27 L.R.A. 42. Confusion of the public and damage to the plaintiff are the gist of the action. Hotel Claridge Co., Inc., v. George Rector, Inc., 164 App.Div. 185, 149 N.Y.S. 748. In the absence of damage, inconvenience or annoyance is insufficient.' (Emphasis supplied.)

The Appellate Division continued, 127 N.Y.S.2d at page 488:

'The improbability of confusion explains the rule that there can be no proprietary right in descriptive or geographical words or names, so long as their appropriation has not the effect of deception. Corning Glass Works v. Corning Cut Glass Co., 197 N.Y. 173, 178, 90 N.E. 449, 450. * * *' (Emphasis supplied.)

See also Miss New Yorker Shops, Inc., v. Kasman, Sup., 139 N.Y.S.2d 229; Playland Holding Corp. v. Playland Center, 285 App.Div. 1075, 139 N.Y.S.2d 744--injunction denied.

In the similar case of Hygeia Water Ice Co. v. New York Hygeia Ice Company, 140 N.Y. 94, 35 N.E. 417, the plaintiff sought to restrain the defendant from the use of its corporate name, on the the ground that such name so nearly resembled that of plaintiff as to be calculated to deceive persons dealing with them.

Affirming the dismissal of the complaint upon a decision of the trial court at Special Term, New York County, the Court of Appeals said, in part, 140 N.Y. at page 97, 35 N.E. at page 418:

'There is no finding and no satisfactory proof that the defendant, by the use of the name, ever deceived any one, or that any confusion as to identity was ever produced in consequence.'

The Court of Appeals concluded, 140 N.Y. at page 98, 35 N.E. at page 418:

'Courts of equity must, in such cases, assume that the public will use reasonable intelligence and discrimination with reference to the names of corporations with which they are dealing or intend to deal, the same as in cases of individuals bearing the same or similar names. * * * But we think that the court was not bound to hold in this case that the defendant corporation, by reason of the corporate name which it adopted, has been mistaken for the plaintiff, or is likely to be.' (Emphasis supplied.)

The confusion must be reasonable, for the law does not justify interference in behalf of ignorant or careless persons. Corning Glass Works v. Corning Cut Glass Co., 197 N.Y. 173, 180, 90 N.E. 449, 451,

In the recent case of Murray v. Miller, Sup.1955, 142 N.Y.S.2d 857, plaintiff and defendant were rival shoe manufacturers, and both made shoes to the shape and contour of the human foot. Plaintiff sought to enjoin alleged unfair competition and damages. Plaintiff was the originator...