The evidence and findings in this case establish that plaintiff originated in 1938 a new style and format for reprints which was novel and distinctive and constituted a novel and not theretofore used combination of various features utilized in bookmaking and embodied it in publications which it designated as "Pocket Books" to be sold at a small price and of uniform and appropriate sizes to be easily carried in the ordinary coat pocket. Incorporated in the books were editorial features both novel and distinctive. Large sums of money were spent by plaintiff in sales promotion and the development of its good will and business. Success and popularity of the project were general and instantaneous and during *Page 64 the following four years over sixteen million copies were sold through some sixty thousand outlets. To capitalize on and take advantage of plaintiff's good will and property, defendants deliberately, intentionally and fraudulently copied and appropriated to their own use the style and format of plaintiff's books and began to issue and sell in the fall of 1941 books which were practically indistinguishable to the ordinary buyer from plaintiff's reprints and which were designed to and did confuse and mislead the public into the belief that the books of defendant were in fact issued for sale by the plaintiff.
That the acts and practices of defendants found by the court below constitute unfair trade in business cannot be gainsaid. Not alone was there found to be deliberate misappropriation of plaintiff's good will and complete and intentional simulation and imitation of the books in size, distinctive markings and other characteristics but also open and obvious fraud and false pretense.
It is the province of courts of equity to intervene to prevent such acts and practices (Fischer v. Blank, 138 N.Y. 244). Courts of equity do not wink at efforts of an imitator to carry out such a dishonest plan. "* * * the right to acquire property by honest labor or the conduct of a lawful business is as much entitled to protection as the right to guard property already acquired. * * * It is this right that furnishes the basis of the jurisdiction in the ordinary case of unfair competition" (International News Service v. Associated Press,248 U.S. 215, 236). "The theory upon which a court of equity has long acted is that a resemblance in, or an imitation of the names, signs, or marks, under which another conducts a business, is a deception practiced upon the public and an injury to the proprietor, in the loss of custom and patronage; to redress which an action at law for damages is not a sufficiently satisfactory remedy. * * * A publication is the subject of property and there is no reason why, like every other kind of property, it should not be the subject of the law's protection. To put out a colorable imitation of it, by which the public may be easily misled into supposing that it is the literary article they had in mind to obtain and read, is an act of deception, which injures the publisher." (Munro v. Tousey, 129 N.Y. 38, 41). The test in actions to restrain unfair competition in business is whether the acts *Page 65 complained of are fair or unfair. "No person should be permitted to pass off as his own the thoughts and works of another." (Fisher v. Star Co., 231 N.Y. 414, 427, 433).
The right to relief in each case depends on its own peculiar facts. The test of unfair competition in a case like this is not found in elaborate descriptions of points of difference discoverable after careful comparison between the competing articles but rather in the resemblance which will deceive the average buyer into believing without elaborate comparison that the simulated article is the original which the buyer has in mind. I am not prepared to subscribe to the proposition that equity will not interfere to prevent such an obvious, deliberate and undeniable species of fraud and deception as is established in this case by the findings of the court below.
The judgment appealed from should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, DESMOND and THACHER, JJ., concur with LEWIS, J.; RIPPEY, J., dissents in opinion in which CONWAY, J., concurs.
Judgment accordingly.