Playland Holding Corp. v. Playland Center, Inc.

285 A.D. 1075, 105 U.S.P.Q. (BNA) 198, 139 N.Y.S.2d 744, 1955 N.Y. App. Div. LEXIS 6706

Opinion

Order granting injunctive relief pursuant to section 964 of the Penal Law reversed on the law and the facts, without costs, and petition dismissed, without costs. The facts do not warrant an injunction against the use of the word “Playland”, which is in common use, or deletion thereof from the corporate name of appellant. The clown’s head is a symbol of similar operations and is also in common use; therefore the use of it should not be restrained. MacCrate, Schmidt, Murphy and Ughetta, JJ., concur; Wenzel, Acting P. J., dissents and votes to affirm, with the following memorandum: It appears clear to me that the defendant’s adoption of its name, and the full face clown’s head used in conjunction therewith in public display is intended to, and is prone to deceive the public. This is one of the elements in actions of alleged unfair competition. The defendant's “ Playland Center ” is situated on an arterial highway which would necessarily be passed by many people bound for plaintiff’s “ Rockaways’ Playland ”, but a few miles distant. The fact that the features of the clowns are not identical and that the names vary slightly is not of import if there is the likelihood that at least some people enroute to plaintiff’s amusement park will be deceived by the combination of the name and the laughing clown into believing they have arrived at their destination. The use of the name and device is an infraction of section 964 of the Penal Law. [206 Misc. 404.] [See post, p. 1174.]