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Cut & Curl, Inc. v. Giovinazzo

Appellate Division of the Supreme Court of New York, Second Department
May 8, 1967
28 A.D.2d 541 (N.Y. App. Div. 1967)

Opinion

May 8, 1967


Judgment of the Supreme Court, Queens County, dated December 27, 1966, reversed on the law, without costs and proceeding dismissed, without costs and without prejudice to such other proceeding or action as may be appropriate. The findings of fact in the opinion at Special Term are reversed insofar as they are inconsistent herewith and new findings are made herewith as indicated herein. The summary relief authorized by section 964 of the Penal Law should be invoked only when there is such conclusive evidence of intent to deceive the public, and such an absence of factual issue, as would, in an appropriate case, authorize a summary judgment ( Association of Contr. Plumbers v. Contracting Plumbers Assn., 302 N.Y. 495, 502; Matter of Industrial Plants Corp. v. Industrial Liquidating Co., 286 App. Div. 568, 571; Matter of Francois L. Schwarz, Inc., v. Schwartz Military Sales, 26 A.D.2d 807). In our opinion the petitioner here failed to sustain such burden ( Academy Reproduction Corp. v. Finelli, 23 A.D.2d 767; Matter of Technical Color Chem. Works v. Felkay, 21 A.D.2d 787; Matter of Ryan Son v. Lancaster Homes, 19 A.D.2d 14). Brennan, Rabin, Benjamin and Munder, JJ., concur; Ughetta, Acting P.J., dissents and votes to affirm the judgment. The intent of appellant to deceive is convincingly shown. In 1956 petitioner procured a New York State certificate of registration for conduct of its business under the mark of "Cut Curl — Beauty on a Budget" and made application to the United States Patent Office for registration of the trade-mark, subsequently granted in 1958, "Beauty on a Budget" (with scissors design). At present it operates five salons and has entered into 14 license agreements in the metropolitan area, including two salons in Staten Island. It advertises extensively its name and mark. In October, 1966, appellant opened a shop in Staten Island under the trade name of "Curl `N' Cut Beauty Salon, No Appointment Necessary." He used in advertising both the name "Curl `N' Cut" and the slogan "Beauty on a Budget." He positioned the crossed letter "t" into the shape of a scissors in the word "Cut" on a sign on his front door, depicted in his advertising. The 1956 mark of petitioner expressly associates "Beauty on a Budget" with "the Design of Scissors". Thus, appellant, by thought and word, completely appropriated petitioner's mark. When promptly notified of this deception, he transposed his use of "Beauty on a Budget" to "Budget your Beauty". I do not think that the change undid the brazen deception.


Summaries of

Cut & Curl, Inc. v. Giovinazzo

Appellate Division of the Supreme Court of New York, Second Department
May 8, 1967
28 A.D.2d 541 (N.Y. App. Div. 1967)
Case details for

Cut & Curl, Inc. v. Giovinazzo

Case Details

Full title:In the Matter of CUT CURL, INC., Respondent, v. JEROME GIOVINAZZO, Doing…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 8, 1967

Citations

28 A.D.2d 541 (N.Y. App. Div. 1967)