I concur in the result. Respondents bought and paid for the title, “ The Price Is Right.” Any reasonable use of this title on TV commercials would normally involve the pricing or the transfer of merchandise as a bonus or at bargain prices. Appellant has no monopoly on the donation of merchandise prizes. Doing any one or more of those things would not constitute an appropriation of appellant’s “ideas, format and other literary material” so as to render respondents liable to make payments to appellant under the earlier agreement. The Appellate Division has held that there is a triable issue concerning whether respondents did more than they were entitled to do in making use of this title which they bought. Respondents have not appealed. Appellant is clearly not entitled to summary judgment.
*16Judges Dye ‘and Foster concur with Judge Burke ; Judge Van Yoorhis concurs in result in a separate memorandum; Chief Judge Desmond and Judges Fuld and Froessel dissent and vote to reverse and to grant summary judgment in favor of plaintiff with this memorandum: There is no triable issue presented. The record unequivocally established that the defendants’ show, “ The Price Is Right ”, is based upon and constitutes the use of the plaintiff’s submission to the defendants of his proposed television program.
Order affirmed, etc.