#### John T. Fay and Eva N. Fay, Respondents, *v.*Herbert Lambourne and Louis Granett, Appellants.

First Department,

February 7, 1908.

Trade names — infringement — deception of public — equity.

Persons who pretend to tell fortunes are disorderly persons and the pretense of occult powers and the ability to answer confidential questions through spiritual aid is a species of fortune-telling and is a fraud upon the public. A person engaged in such business has no property rights in a name or appellation used . in connection with it, for a property right' in a name used in connection with a business is similar to the right to the use of a trade mark and equity will not interfere to protect a name or trade mark used to deceive the public.

Equity does not adjust differences between rogues and one invoking the aid of equity must he free from taint before the court will-proceed to determine whether or not he has been wronged.

Appeal by the defendants, Herbert Lambourne and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of Hay, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, enjoining the defendants from, in any manner or way using the name, title or trade mark of the plaintiffs, or any words or name similar to the words or name used by the plaintiffs.

*Charles Golclzier,*for the appellants.

*Franklin Bien,*for the respondents.

Houghton, J.:

For a number of years the plaintiffs, who are husband and wife, have given entertainments throughout the country under the name of “Th,e Fays.” jVYiiile certain sleight of hand tricks are interspersed the principal performance consists, as the record discloses, of alleged mind reading and the telling of past as well as future events. This consists of the answering by the wife of written questions propounded by auditors. Ability to answer these questions and to foretell the future is pretended to come from supernatural poxvers possessed by her. If any one in the audience desires to propound a question of a private nature he or she is given the privilege *246
      *oí*doing so by purchasing Mrs. Fay’s “ Thauma'turgy Bream Book” to which, is attached a blank coupon witii instructions for filling out. No guaranty is given that these questions will be answered, but an assurance is given that they will be if the spirit so moves. The mysterious character of the performance is such that numerous questions are propounded of a most confidential and personal nature. TJpon their receipt these questions are turned over to employees who are told to answer them as they see fit. From the evidence it would appear, that the plaintiffs have the reputation of giving a most mystifying entertainment.

The defendants are former employees who, having learned how plaintiffs’ performances were given, themselves gave performances explaining plaintiffs’ tricks and exposing their alleged occult powers. In their advertising notices and bill posters, although stating it was an exposé, they gave prominence to the words “ The Fays ” or “ The Pliays,”;as they sometimes spelled it, to such an extent that certain persons, were deceived in the advertisement and went to the performance thinking they were going to see and hear the Fays, themselves.

This action was brought to restrain the defendants from using the name if The Fays ” in any manner in their advertisements and posters, and especially in such manner as to mislead the public into believing that a performance by the plaintiffs was being had, and has resulted in a permanent injunction enjoining the defendants from so doing.

If the injunction was to stand, it is altogether too broad and evidently much broader than the trial judge intended it should be from his memorandum decision. By that memorandum it was stated that the defendants should be enjoined only from using the words in such way as to mislead the public, but by the injunction granted the defendants are restrained from using plaintiffs’ name in any way.

The situation disclosed, however, is such that equity should not interfere at all. The plaintiffs are engaged in.deceiving the public, and the most entertaining part of their performance is in effect fortune telling. In-such a business they can get no property rights in. a name or appellation which a court of equity will protect. The property right which the plaintiffs assert they have in the-term *247“ The Fays ” and which they would have if their business was without deception, is similar to the right to the use of a trade mark. Equity will not interfere to protect a party in the use of a trade mark where the name or phrase claimed as such is intended and calculated to deceive the public. *(Fetridge*v. *Wells,*4 Abb. Pr. 144; *Gluckman*v. *Strauch,*99 App. Div. 361.) A party invoking the aid of equity to restrain the infringement of a trade mark must himself be .free from fraud in his representations to the public. *(Prince Mfg. Co.*v. *P. M. P. Co.,*135 N. Y. 24.)

Persons who pretend to tell fortunes are defined to be disorderly persons. (Code Grim. Proc. § 899.) The pretense of occult powers and the ability to answer confidential questions from spiritual aid is as bad as fortune telling and a species of it and is a fraud upon the public.

It is no answer so far as the plaintiffs are concerned that no one ought to believe the pretenses. It is the half doubt and the half belief of a certain class of people that make and hold the audiences. If every one wholly disbelieved, curiosity would be soon satisfied and the entertainment lose its attraction.

Flor is it any answer to say that the defendants are themselves guilty of wrong. Equity does not adjust the differences between, rogues. The complainant is first judged, and not until he has been found free from taint does equity proceed to determine whether or not he has been Avronged.

The injunction should not have been granted. The judgment is reversed and a neAV trial granted, with costs to the appellants to abide the event.

Pattebson, P, J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.