The sun. [volume] (New York [N.Y.]) 1833-1916, 1898-02-26
NEW roRK oowrrnoIl1 WINS.
ceuaaeroisl Advertiser Can,t Prevent II frsp
Using 1tn Chosen Title.

Commercial Advertiser Can't Prevsnt Il frea
UsinE ls Chosen title.
Y order OF Justice DAILY of tho Supreme
Court enjoining David O.. Haynes g. Co. from
calling their newspaper the Ne,p Pork CONNER
cidl has been reversed by tho Appellate Di-
vision of the Supreme Court. While the tempo
rary injunction was pending, Mr.. HAYNES
printed his paper as the New York -" and
when tho injunction was made permanent by
Justice DAILY he named his paper Commercial
Americd. The proceedings against Mr.. Haynes
were brought by the Commercial Advertiser
Association, which alleged that in common par
lance 1t is called the Commercial, and that
the use Of the title Neto Fork Commercial was
an infringement.
The decision of the Appellate Division is writ
ton by Justice Barrett, with the other Justices
concurring. The Court says:
w IND nothing in the afndsvits presented
by the plaintiff to warrant the conclusion Of the
learned Justice at Special Term that: Tho
proofs establish that the name adopted by the
defendant for his newspaper will lead to It's be-
ing confused with the plaintiffs newspaper and
that injury to the plaintiff and deception upon
tho public will result 1t may be that some
slight confusion will arise until the character Of
the two publications 10 clearly understood by
newspaper writers and advertisers. There can.
nOWeVCT. Do no COnIub1On OH inc pHIL vi bh10
purchasers. This possible confusion on the part
OF newspaper writer's and advertisers may
cause some temporary nconyenience to both
parties, but there Is not n particle OF evidence
that 1t has caused or is likely to cause injury to
the plaintiff or deception upon tho public. In.
stated in the plaintiffs papers Is possible injury
to the defendant pt ,.,u o.,.u ....,,,. =, ~.
plaintiffs part to prove possible injury con
sists In mere expressions OF opinion. Thus, Mr..
James A. Hibson deposes TO the probability Of
names and adds that much business, especial
ly advertising business, may thereby BIO lost to
The S9mn,ercIaL adrertaseri, Mr.; George +.
suit of such confusion advertising intended for
the Commercial advertiser will very frequently
Commercial These opinions are combated
and more than met by opinions OF Messrs. Laf-
1 These sn iatteT sent deinSsi say S that there &ef Is no nSp pos:
sibility Of such confusion or of such pecuniary
damage as the plaintiff claims. and their afiida;
Wits are controlling because Of the undisputed
facts which form the basis of their opinions.
These facts as detailed by Mr.. Laftan are, in
ane ma,n: 'n of the fme t u,ner papers an are .n SO p marked
and distinctive that, no possibility Of confusion
would arise that the titles of the two pespe,rs
dissim'lar character; that the type in the body
Of the two papers and the general typographical
arrangement thereof are also different that tho
wood cut oil, vignette. while the plaintiffs has
none; that the character of The two. papers is
entirely different: that,the PLAINTIFF is an even.
ing newspaper, which publishes the general
news Of the day and which IL. sold at 2 cents a
copy, while the defendants is a morning paper
which confines itself to commercial, financial,
trade and shipping news and which is published
at B cents O. copy.
THE plaintiffs counsel also contends that its
newspaper is popularly known as the ommer
cidt or the Netr Pork Comnercidl. and the
tect the popular name as readily as they do the
real name Assuming the latter proposition
fact that its newspaper In common parlance ID
known as the Commercial or the -Nei1 York
Commercial may be q consideration bearing
age. 1t does not. however. of itself give q pro-
prietory right to the exclusive use Of the adjec-
tive regardless of any question Of actual or
probable injury to the plaintiff"
The Court says that injunctions Will not DO
granted In such cases as this where 1t does not
done or Is likely to do harm to the plaintiff.