(dissenting).
Here is another example of the anomalous situation created by the courts’ endeavors to grant a non-statutory monopoly through the medium of the “unfair competition” doctrine, which monopoly goes far beyond that bestowed by legislative enactment.1 Plaintiffs operate restaurants in Miami Beach, Florida, under the name “Wolfies.” Apparently, “Wolfie” was the nickname of a gentleman by the name of Wilfred Cohen. Had he been named Edward Cohen, Samuel Cohen, Gerald Cohen or Joseph Cohen, he, if nickname minded, would doubtless have considered such distinctive names as “Eddie’s,” “Sam’s,” “Jerry’s,” and “Joe’s” for his restaurant.2 If endowed with the not too uncommon name “Smith,” he would have used “Smitty’s”3 and, for some reason, every “Moore” in the restaurant business must be a “Dinty.”
The restaurant, apparently of the-glorified sandwich and ice cream type, achieved popularity with certain elements. Subsequently some 1,400 miles away in Brooklyn, New York, opposite the campus of Brooklyn College (some 25,000 students) appeared a similar type-restaurant also using the name “Wolfies.”' It not only took the name “Wolfies” but. imitated the menu format and presumed' to confuse the international situation by-offering in Brooklyn Floridian French. Toast. Upon the trial instead of saying,. “I copied Wolfies of Miami; what’s wrong with that?”, defendant indulged: in a series of fantastic explanations. First, the father of a friend was named’ Wolf Pollack. Second, an officer of defendant, was a “wolf,” meaning thereby a person whose vaunted attraction for the opposite sex met with a fair degree of success and reciprocity. Third, the-electric sign which had borne the previous name “Jackies” could be easily and cheaply altered by substituting “Wolf”' for “Jack.”
Were the underlying principles of the law of unfair competition not of paramount importance here, defendant’s explanatory efforts could well merit the-*305award of affirmance. But the case is not thus easily to be disposed of. A restaurateur in the southeastern part of the country takes unto himself a not too unique nickname for a restaurant and straightway obtains without statutory sanction a permanent monopoly to the exclusion of every other inhabitant of our fifty states. This result will not withstand analysis. To the trial court, “This is an unfair competition case * * * ” yet he finds “that the parties are not in direct competition.” This circumstance is considered- “unusual” as indeed it is. On appeal the suit is “to protect their [plaintiffs’] common law right to their trade name.” Plaintiffs advance the theory that the trade name “Wolfies” is a valuable asset and that priority of use gives to the prior user the exclusive right to it.
I cannot but believe that unfair competition should mean (1) competition and (2) that it is unfair. Obviously, there is no competition between Wolfies (Miami) and Wolfies (Brooklyn). If the Brooklyn College student who seeks physical rehabilitation from his mental debilitation caused by a two-hour examination believes that he is walking across the street into Wolfies of Miami, he would truly be in a state of post-examination shock. Nor is it possible that a family from the midwest, anxious to visit Wolfies, would find itself in Brooklyn instead of Miami. Everyone gets lost in Brooklyn — but not that lost. The trial court itself has found “that the plaintiffs do not claim to have suffered any financial loss to be traced to the use of the name ‘Wolfies,’ which eliminates any such aspect of the controversy.” 185 F.Supp. 454, 456. The court, however, was greatly influenced by defendant’s flagrant appropriation of the name. But intent is not controlling. A trade name implies trade. If trade is not affected, there is no loss.4 There is no “chance that this [the use of the name “Wolfies”] will deflect buyers who would otherwise buy of the putative other source * * * [which would cancel] the second comer’s privilege of reproducing the original, which he has in common with the public at large (Judge Learned Hand in American-Marietta Co. v. Krigsman, 2 Cir., 1960, 275 F.2d 287). Furthermore, there is no proof or even claim that plaintiffs’ name, credit, reputation for quality, or kindred assets are being tarnished by defendant.
Recognition must be given to the many cases in which the restaurant name is quite unique such as the “Stork Club,” 5 the “Pump Room,” 6 “Cock ’N Bull” 7 and “Ruby Foo.”8 All these cases can be put into the deception category because of the unusual name. The courts, unfortunately, can never avoid the task of making distinctions or drawing border lines. If the courts are to look for legislative guidance as to national policy relating to monopoly, the statutes (buttressed by Supreme Court decisions) disclose a tendency to grant monopolies in a most restrictive manner limited in time and bestowed only upon a showing of merit. It may well be that a “Stork Club” or a “Pump Room” should qualify for exclusionary protection as against an ordinary citizen named “Joe” but quaere whether a restaurant operator using a soubriquet in its familiar or diminutive form “Wolfie” can in this day and age claim such uniqueness whether it emanates from a name or from a characteristic. In *306my opinion, such a holding disregards the principles of unfair competition recently declared in this Circuit.9
I therefore would reverse and dismiss the complaint.
. See the comment of Judge Clark in Ms dissent in American Safety Table Company, Inc. v. Schreiber v. Goldberg, 2 Cir., 1959, 269 F.2d 255, 277, certiorari denied 1959, 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185, “The all but wholly obscured truth is that the well-known concept of unfair competition is being employed to fashion and shelter a monopoly * * * ”. The dangers to which Judge Clark adverted were heeded in the second opinion, 287 F.2d 417, 419 (decided February 28, 1961), wherein the court said, referring to a perpetual monopoly established via unfair competition, “We certainly never intended any such result. On the contrary, as indicated in the opinion again and again, we intended no departure from the basic principles of the law of unfair competition as stated in this Circuit.”
. With respect to the service of food, in-the New York Manhattan 1961 telephone book, “Eddie’s” is found 7 times, “Jerry’s” 5 times, “Joe’s” 13 times, even. “Wolfies” once. In the Brooklyn book, “Eddie’s” 4 times, “Jerry’s” 8 times and “Joe’s” 27 times. Other cosmopolitan-centers would probably contribute a proportionately equal number of similarities.
. In New York and Brooklyn, “Smitty’s”’ is found 3 times.
. A leading English case describes the principle upon which the courts act in protecting a trade name as being the protection of a plaintiff from a loss of business caused by confusion as well as the protection of the public from being misled by misrepresentations. Levy v. Walker, 1879, 10 Ch.D. 447.
. Stork Restaurant, Inc. v. Sahati, 9 Cir., 1948, 166 F.2d 348.
. Ambassador East, Inc. v. Shelton Corners, Inc. et al., D.C.S.D.N.Y.1954, 120 F.Supp. 551.
. Nagrom Corporation v. Cock ’N Bull, Inc., D.C.D.C.1957, 149 F.Supp. 217.
. Pike v. Ruby Foo’s Den, Inc., 1956, 98 U.S.App.D.C. 126, 232 F.2d 683.
. American-Marietta Co. v. Krigsman, 2 Cir., 1960, 275 F.2d 287; Speedry Products, Inc. v. Dri Mark Products, Inc., 2 Cir., 1959, 271 F.2d 646; Norwich Pharmacal Company v. Sterling Drug, Inc., 2 Cir., 1959, 271 F.2d 569.