
    The United States Frame and Picture Co., Plaintiff, v. Charles S. Horowitz, Defendant.
    (Supreme Court, New York Special Term,
    June, 1906.)
    Trade marks and trade names — Infringement and unfair competition.
    The use of the trade name “ New York Frame and Picture Co.” or “ N. Y. Frame & Picture Co.” may not be restrained at the instance of the United States Frame and Picture Company.
    The use by defendant, lately an employee and officer of the plaintiff, upon opening a place of business of his own, of stationery and advertising cards which were so closely similar as to be a deceptive imitation of those of the plaintiff, and the publication of notices of removal, so ambiguous in phrasing as to lead the unwary to believe that reference was made to the plaintiff and not to the defendant, constitute unfair competition and may be restrained.
    Advertisements by defendant, containing no misleading or ambiguous references to removal and to previous location and not imitative in style or printing of plaintiff’s advertisements, constitute fair competition.
    Action for an injunction. The opinion states the case.
    Leslie S. Lockhart (Frederic W. Hinrichs, of counsel), for plaintiff.
    Hathan Burkan (Arthur Palmer,'of counsel), for defendant.
   Blanchard, J.

This is an action brought by the plaintiff corporation to restrain the defendant from carrying on business under the trade name of “ Hew York Frame and Picture Co.,” or H. Y. Frame & Picture Co.,” or any other name so similar as to cause plaintiff to be confused with the defendant in the minds of the public; and to restrain the defendant from using any advertisements or stationery likely to induce the public to believe that his business is that of the plaintiff. Plaintiff is a domestic corporation doing business at Ho. 3 Barclay street, Hew York city. The defendant is a brother of the president of the plaintiff corporation, which was organized in 1902. The defendant continued as an employee' and officer of the plaintiff corporation until 1905, when dissensions arose between himself - and his brother, and he severed his connection with the plaintiff company and opened a place of business at Hos. 86-88 Fulton street, under the trade name of “ Hew York Frame & Picture Co.” or “ H. Y. Frame and Picture Co.,” for carrying on the same kind of trade as that of the plaintiff. He ordered from the same printer who did work for the plaintiff, advertising cards and stationery similar as to heading and marginal matter to. the advertising cards and stationery of the plaintiff. He issued cards and letters to many persons, including customers of the plaintiff, stating that “we have now moved to Hos. 86-88 Fulton street and that “we are now located at the above address;” and referring to “ our long past experience ” and “ our new place.” In some instances it was testified that former customers of the plaintiff had thus been led to believe that the plaintiff had removed to the defendant’s address. The use of such stationery, which was so closely similar as to he a deceptive imitation of that of the plaintiff, and the publication of notices of removal so ambiguous in phrasing as to lead the unwary to believe that reference was made to the plaintiff, and not to. the defendant, are unfair competition. De Youngs v. Jung, I Misc. Rep. 56; Johnson v. Hitchcock, 3 N. Y. Supp. 680. ■ The use and publication of such stationery and notices have in large measure been discontinued by the defendant. An injunction, however, against the continuance of their use and publication will he made. The use of the trade name “ Hew York Frame & Picture Co.” or “ H. Y. Frame & Picture Co.” stands in a different situation. Ho intent to deceive the public can he predicated from the mere assumption of this name or from the wide advertisement thereof. From the evidence submitted upon, the trial, it appears that the defendant has advertised extensively and in greater measure apparently than the plaintiff. In so far as such advertisements contain no misleading or ambiguous references to- removal and to previous location, and are not imitative in style or printing of the advertisements of the plaintiff, such advertisements constitute fair competition. In this respect the present case is distinguishable therefore from the facts presented in Charles S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462. The defendant will be enjoined therefore only as has already been indicated. The use by the defendant of the trade name “ Hew York Frame & Picture Co.” or “ H. Y. Frame & Picture Co.” will not be restrained, and in other respects the plaintiff’s prayer for relief will be denied, without costs to either party.

Judgment accordingly. '  