
    Ernest M. Burrow, Plaintiff, v. Theodore Marcean et al., Defendants.
    (Supreme Court, New York Special Term,
    May, 1910.)
    Trade marks and trade names: What may be appropriated — Loss or forfeiture of protection: Acquisition, transfer and abandonment — Assignment — Assignability of trade name.
    The photograph business is in the nature of a profession as distinguished from a trade or mercantile pursuit and the name “ Sarony ” used as a trade mark was personal to the photographer who bore it, because of his personal skill and artistic excellence, and is not assignable; nor can a printer who is not a photographer be protected in its use.
    Motion to dismiss complaint.
    Allen & Sabine, for plaintiff.
    M. Goodman (Morgan J. O’Brien, of counsel), for defendants.
   O’Gorman, J.

The evidence, prescribes a clear case of unfair competition which would justify equitable relief if the plaintiff’s own conduct were free from criticism, but the photographic business is in the nature of a profession or calling as distinguished from a trade or mercantile pursuit, and the trade-mark “Sarony” being personal to Napoleon S'arony, because of his personal skill and artistic excellence, was not assignable. When the plaintiff, who is a printer and not a photographer, holds himself out as “ Sarony ” and “the original Sarony” he is perpetrating a fraud upon the public, and in such a case equity will withhold relief. Prince, v. Prince, 134 N. Y. 24; Hegeman v. Hegeman, 8 Daly, 1.

Complaint dismissed, with costs.  