#### In the Matter of Paul Alicea et al., Individually and as Copartners Doing Business as La Playa Sextet, Petitioners, against Francisco Sanchez et al., Individually and as Copartners Doing Business as La Plata Sextet, Respondents.

Supreme Court, Special Term, Bronx County,

November 25, 1957.

*Samuel J. Stoll*for petitioners.

*Sidney W. Dreeben*for respondents.

*197George Tilzer, J.

The petitioners seek a permanent injunction, pursuant to section 964 of the Penal Law, enjoining and restraining the respondents from all use of the trade names ‘ ‘ La Plata Sextet, ” “ La Playa Casino, ” “ La Playa Havana ’ ’ and “ La Playa Orchestra.”

The petitioners, copartners, do business under the trade name and style of ‘ ‘ La Playa Sextet. ’ ’ The Sextet is a musical band whose forte is the mambo.

The respondents were organized in the year 1957 as the “ La Plata Sextet.” Three of the members of this aggregation had previously been members of the “ La Playa ” group.

The petitioners contend that the La Plata Sextet has adopted their arrangements, their style and their repertoire; that they have sought to identify themselves with the petitioners; that confusion has taken place, and that the public has been deceived and misled, and that such confusion will increase unless the court enjoins the respondents from using the name “ La Plata Sextet ” or any other name which might be similar to petitioners ’ name, “ La Playa Sextet.”

In determining whether the name adopted by the respondents may deceive or mislead the public, consideration must be and is given to the circumstance that the business of both parties is done in large measure with people who neither speak nor understand the Spanish language.

'' La Plata ’ ’ in Spanish means '' the silver ' ’, while the words " La Playa ” mean" the beach ” or “ the seashore.” The words, it is to be observed, are similar in appearance. They differ in only one letter. Visually, therefore, it may be said that confusion could result. So far as the sound of the words is concerned, although the petitioners say they are pronounced in precisely the same manner, even to one unacquainted with Spanish, audibly they are not alike.

Moreover, both names, “ La Playa ” as well as “La Plata ” were used by bands and orchestras many years prior to the petitioners ’ use of the name ‘' La Playa. ’ ’ Even today there exist other musical groups which employ in their names the words ' *‘*La Playa ’ ’ and ' ' La Plata. ’ ’ The petitioners are thus not in a position to say that the use of these words means solely the petitioners.

Though there may be competition between the two groups, especially since they both play the same type of music, it has not been shown that the rivalry on the respondents’ part consisted of that species of fraud condemned by the statute. The proof is not conclusive that there was intent on the respondents ’ part *198to mislead the public or that the public is in danger of harm through deception.

The court concludes that upon the affidavits presented the petitioners’ right to the drastic relief sought has not been established in a clear and convincing manner. In a plenary-action, nevertheless, it may be that injunctive relief would be afforded petitioners, dependent upon the proof there submitted.

The application is denied, without prejudice to the bringing of such other proceeding or action as may be appropriate.