
    Lawrence W. Baff and Daniel Pearlstein, Trading as Dog Food Products Co., Respondents, v. The Dog and Cat Food Products, Inc., Appellant.
   Action by plaintiffs, trading as “ Dog Food Products Co.,” to restrain defendant from using the corporate names, “ The Dog and Cat Fish Food Products, Inc.,” or “ The Dog and Cat Food Products, Inc.,” and for money damages alleged to have been sustained in eonsequenee of the acts of defendant. Judgment reversed on the law and the facts, with costs, and complaint dismissed on the law, with costs. In our opinion there is no basis for a finding that plaintiffs have an exclusive right to the trade name “ Dog Food Products Co.” These words are merely descriptive, and plaintiffs failed to establish that they have acquired a secondary meaning. (Neva-Wet Corp v. Never Wet Processing Corp., 277 N. Y. 163.) The proof does not show that defendant adopted its corporate name for the purpose of deceiving the public. The record discloses no affirmative act of unfair competition by defendant, nor is there any evidence that the defendant or any of its salesmen or employees, including Morris Solow, resorted' to false statements or unfair means to divert plaintiffs’ customers. (Scott & Co., Inc., v. Scott, 186 App. Div. 518.) Hagarty, Johnston, Taylor and Close, JJ., concur; Lazansky, P. J., dissents and votes to affirm the judgment.  