
    The Motor Boat Publishing Company, Plaintiff, v. The Motor Boating Company, Defendant.
    (Supreme Court, New York Special Term,
    December, 1907.)
    Trade-marks and trade-names — What may he appropriated — Descriptive words — Name descriptive of subject of periodical publication.
    The proposed publication of the “ Motor Boating Magazine ” by the. “ Motor Boating Company ” will not be restrained by preliminary injunction at the instance of the “ Motor Boat Publishing Company,” particularly where circulars and announcements show that such publication is an entirely new one that is being launched and that the coloring and general designs of the covers are so different that nobody could ever mistake the defendant’s publication for that of the plaintiff.
    The form of subscription card used .by both companies being in its general form one common to a great number of other business concerns, the card adopted by the defendant cannot be said to be unduly similar to that of the plaintiff.
    A foreign corporation may not be restrained from doing any business in this State on the ground that it has not obtained a certificate authorizing it to transact such business, as required by the General Corporation taw (L. 1890, ch. 563).
    Motion for an injunction pendente lite in an action to restrain the publication of a proposed magazine.
    Hugo H. Ritterbusch, for motion.
    Robert W. Gray (Rollen M. Morgan and. Arthur L. Marvin, of counsel), opposed.
   Giegerich, J.

The plaintiff seeks to enjoin the defendant during the pendency of the action from publishing or selling a proposed magazine to bear the name “ Motor Boating,” or any publication whatsoever bearing the name “Motor Boat ” or “ Motor Boating,” or any name similar to or an imitation of the name “ Motor Boat,” and from doing any business in the State of Hew York because of its failure to comply with sections 15, 16 and 16a of the Corporation Law of the State of Hew York in that, being a foreign corporation, the defendant has not procured the necessary certificate to do business in this State. The theory of the plaintiff’s claim to the exclusive use of the expression “ Motor Boat ” in the title ,of any publication is based upon the fact that the plaintiff has used such title continuously since April, 1904. The opposing affidavits show that the expression “ motor boat ” to designate boats propelled by a motor had come into general use prior to the date when the plaintiff began its publication, and" that some magazines previous to that date conducted a regular department under the title “ The Motor Boat.” Although this is contradicted by the replying affidavits, I think the evidence is in favor of the defendant on this issue, and it is apparent that whatever influence the plaintiff’s publication may have had in promoting the use of the term “ motor boat ” in place of “ power boat ” or “ automobile boat ” or “ auto boat ” or any of the other terms first used to designate such craft, was only one of a number of contributing causes, and that the change took place at about the- same time and owing to the same influence that brought about the general adoption of the similar expressions “ motor cycle ” and “ motor car.” ■ In deciding the case, therefore, it must be taken as established that the expression “ motor boat ” is a properly descriptive and generally accepted designation. Such being the fact, it is difficult to see what warrant the plaintiff or any one else would have for claiming such broad privileges with respect to the term. It is shown in the opposing affidavits that vhere a title of the character in question is adopted it is quite usual that two oí- three magazines with similar titles are published. Por instance,' “ The Automobile,” “Automobile Magazine ” and “Automobile Topics ” are three distinct publications in that line. Another illustration is found in the case of the engineering publications, there being an “ Engineering Magazine,” “ Engineering Hews,” “ Engineering Record,” “ Engineering Review ” and “ Engineering Index ” and others. The defendant announces that its intention is to add the word magazine,” making the name of its publication “ Motor Boating Magazine.” That being done, I can see no serious danger that the public will be misled and that the mail of the two publications will be confused, or that any other form of confusion will- arise any more than is likely to happen in the case of publications in other lines of somewhat similar names, such as ,the ones instanced above. In the present instance the circulars and announcements sent out by the defendant company are entirely frank and plain, and, indeed, emphatic, in showing that the defendant’s publication is an entirely new one that is just being launched. With respect to the form of subscription cards of which complaint is made, it is shown satisfactorily that the form card used by both companies is in its general features one common to a great many other business concerns. Keeping that fact in mind it does not impress me that the card adopted by the defendant is unduly similar to that used by the plaintiff. So far as concerns the general appearance of the two publications, it is true that they are of the same dimensions; but it is also shown that those dimensions are common to many publications. The coloring and general design of the covers are so different that nobody could ever mistake the one publication for the other. Coming now to the branch of the motion which seeks to enjoin the defendant from doing business on the ground that it has not obtained a certificate authorizing it to do business within the State, I have been unable, after such search as time has permitted me in the absence of citations in the briefs, to find any case in point. The only authority which seems to have dealt with the question at all is American Tartar Co. v. American Tartar Co., 57 App. Div. 411, where a foreign corporation, after doing business in this State for a considerable time without acquiring authority to transact business here, sought to restrain a domestic corporation subsequently organized which adopted the same name without knowledge of the existence of the foreign corporation. The court denied the motion, but nowhere in the opinion delivered was it intimated that the foreign corporation, delinquent in the respect indicated, was without any standing to claim the protection of our courts if it had presented a meritorious case in other respects, the decision being based upon the ground that the domestic company had proceeded in good faith and without knowledge of the prior existence of the foreign corporation. The statute in question, in section 15 thereof, provides the penalty, and a very severe one, for failure to secure authority to do business in this State, and in the absence of decisions on the point I am not disposed to go to the extreme which the plaintiff desires in this case. The motion should be denied, with ten dollars costs.

Motion denied, with ten dollars costs.  