#### Lockport Canning Co., Plaintiff, *v.*Rosario Pusateri, Defendant.

(Supreme Court, Niagara Equity Term,

February, 1913.)

Injunctions—■ corporations — right to use the name “ Lock City Canning Company.”

A domestic corporation engaged in the business of canning tomatoes in the city of Lockport, N. Y., as a rival of the “ Lock-port Canning Company ” having its principal place of business in the town of Lockport, Niagara county, N. Y., will be restrained from using the name “ Lock City Canning Company ” on the ground that the other company has the exclusive right to its name in connection with its business.

Action for an injunction.

W. A. Gold, for plaintiff.

M. A. Federspiel, for defendant.

Pound, J.

The plaintiff, “ Lockport Canning Company,” a domestic corporation having its factory and principal place of business in the town of Lockport, Niagara county, N. Y., brings this action to restrain the defendant from using the name “ Lock City Canning Company ” under which the defendant is doing business in the city of Lockport, N. Y. Both concerns are engaged in the business of canning tomatoes and both sell to jobbers and wholesalers in the same field. Lockport is commonly known as the Lock City and is surrounded by the town of Lockport.

It is contended by defendant, (a) that general terms appropriately descriptive of the business cannot be exclusively appropriated by any one, and (b) that a geographical name cannot be exclusively appropriated against others who can and do use the name with equal truth, and that, therefore, plaintiff is not entitled to preventive relief.

There can be no quarrel with the proposition that plaintiff has no exclusive right to the work “ Lockport ” and, as a separate and distinct proposition, no exclusive right to the word “ canning.”

*294It does not follow that plaintiff has no exclusive right to the name “ Lockport Canning Company ” because other concerns may truthfully describe themselves as Lockport canning companies. Such concerns may style themselves Lock-port companies *or*canning companies, with additional distinctive words of description, but it seems too clear for argument that plaintiff has the exclusive right to use the name “ Lockport Canning Company ” in connection with the business of canning tomatoes.

The substitution of the word *“*Lock City ” for *“*Lock-port ” produces a. name so nearly resembling the name of plaintiff as to calculate to deceive. Thus it has been held that the name “ Columbian Chemical Company ” so nearly resembles the name “ Columbia Chemical Company ” that it is calculated to deceive. People ex rel. Columbia Chemical Co. v. O’Brien, 101 App. Div. 296.

This circumstance alone does not entitle the plaintiff to injunctive relief. Where there was no competition or rivalry between “ Corning Glass Works ” and *“*Corning Cut Glass Company,” it was held that, as the only confusion to be apprehended resulted from similarity of names, defendant would not be restrained. Corning Glass Works v. Corning Cut Glass Co., 197 N. Y. 173.

But here, from the use of the name “ Lock City Canning Company ” by a business rival of the plaintiff, injury may reasonably be anticipated, not from confusion due to mere similarity of name, but from the manner of using the name.

Plaintiff is the first in the field and defendant has no. right to establish himself as a direct competitor, catering to the same class of customers, and, by imitation of name, to mislead those dealing with him into buying his canned tomatoes under the impression that they are buying those of the plaintiff. Corning Glass Works v. Corning Cut Glass *Co.,supra.*

Plaintiff is entitled to judgment restraining defendant from the use of the name *“*Lock City Canning Company,” with costs.

Ordered accordingly.