Avon Periodicals, Inc. v. Ziff-Davis Publishing Co. , 282 A.D. 200 ( 1953 )

Per Curiam.

We think that the adoption by defendants of the title “ Eerie,” the same as that previously employed by plaintiff, in a magazine which also so closely duplicated the size, format, design and illustrated cover of plaintiff’s magazine in the same “ comic ” field was bound to be confusing and constituted unfair competition.

Recognizing that plaintiff had no right to a monopoly on the use of the word “ Eerie ” and that plaintiff’s use of the name had not achieved a secondary meaning in behalf of its magazine, we still think that defendants were not entitled to duplicate plaintiff’s product to the point that there would be no obvious distinction between the two to the- running eye.

We do not regard the decision in Pocket Books, Inc., v. Meyers (292 N. Y. 58) as indicating a contrary result. The books there involved had varying titles as well as distinguishing marks and confusion would be unlikely. Here there is identity of title and subject without sufficiently distinguishing features.

Plaintiff is entitled to an injunction against defendants’ use of the name “ Eerie ” in the “ comic ” field in connection with a magazine which in design and appearance simulates plaintiff’s “ Eerie ” magazine.

Plaintiff has made no such showing of damage, however, as to justify the reference ordered or the award of more than nominal damages.

The judgment on both plaintiff’s and defendants’ appeals should be modified accordingly, without costs. Settle order.