This action is brought to restrain unfair competition, and the Appellate Division has decided that the complaint does not state a cause of action.
We agree with the Appellate Division that so much of the complaint as alleges that the defendants reproduced photographs of individuals taken by the plaintiff, placing thereon the name of "Apeda, New York," does not state a cause of action.
The complaint, however, further alleges that the plaintiff took photographs of stage scenes and characters, known in the theatrical profession as "flash lights" and affixed thereto its trade name "White;" that such pictures are used in the lobbies of theatres and elsewhere for exhibition where the play is being presented. It further alleges that the defendants, intending to deceive the public into believing that they were the original takers and makers of said flash light photographs, reproduced them, placing thereon the name "White, New York," and that the defendants thereby intended to and actually did deceive the public into the belief that they were purchasing the original flash light photographs made by the plaintiff, when, in fact, the photographs were reproductions made by the defendants, and that such acts were unfair competition injuring the plaintiff.
The defendants have no right to sell reproduced photographs of stage plays, representing them to be the originals made by the plaintiff, using the plaintiff's name thereon. *Page 49
"The doctrine of unfair trade amounts to no more than this: One person has no right to sell goods as the goods of another, norto do other business as the business of another, and on proper showing will be restrained from so doing." (Dyment v. Lewis,144 Iowa 509, 513; 38 Cyc. 756; Ball v. Broadway Bazaar,194 N.Y. 429, 435; Munro v. Tousey, 129 N.Y. 38; Benevolent Protective Order of Elks v. Improved B. P. Order of Elks,205 N.Y. 459; Weinstock v. Marks, 109 Cal. 529; Gulden v.Chance, 182 Fed. Rep. 303.)
Unfair competition may result from representations or conduct which deceive the public into believing that the business name, reputation or good will of one person is that of another. (Glen Hall Mfg. Co. v. Hall, 61 N.Y. 226; Howard v. Henriques, 3 Sandf. 725; Lee v. Haley, L.R. [5 Ch. App.] 155; Holbrook v. Nesbitt, 163 Mass. 120, 125; American Tobacco Co. v.Polacsek, 170 Fed. Rep. 117.)
As to these allegations the complaint states a good cause of action.
The judgment should be reversed and the motion denied, with costs to the appellant in all courts.
HISCOCK, Ch. J., CHASE, HOGAN and ANDREWS, JJ., concur; CARDOZO and McLAUGHLIN, JJ., not sitting.
Judgment reversed, etc.