
    Molka Wines Co., Inc., Plaintiff, v. Herman L. Rosenthal and Others, Defendants.
    
    Supreme Court, Special Term, New York County,
    March 26, 1936.
    
      A. Robert Teichner, for the plaintiff;
    
      Maurice Shapiro, for the defendant.
    
      
       Affd., 248 App. Div. 863.
    
   Latjer, J.

Plaintiff claims a right to the trade name " Banner ” in connection with the bottling and sale of wine, and the claim is predicated upon the user of that name after a concern called the Continental Food Products Co., Inc., had been adjudged a bankrupt and its tangible assets sold by its receiver. Plaintiff now seeks to enjoin the defendants from the use of the trade name “ Banner.” One of the defendants purchased from the trustee in bankruptcy of the Continental Food Products Co., Inc., subsequent to the time when the receiver had sold the tangible assets, the trade name Banner,” and claims by virtue of such purchase the exclusive right to use that name. There can be no question but that at the time of the sale by the trustee and the purchase by the defendant of the trade name “ Banner ” the Continental Food Products Co., Inc., had ceased to do business. The acquisition of the trade name Banner ” disassociated with any going business conveys no title to its use. (Matter of Jaysee Corset Co., 201 Fed. 779.) Plaintiff apparently acquired the rights to the name by a user subsequent to the time when it must be deemed to have been abandoned by the Continental Food Products Co., Inc., and prior in time to any user by the defendants. Accordingly plaintiff would seem to be entitled to the relief prayed for.  