Opinion
July 9, 1982
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and Schnepp, JJ.
Order unanimously affirmed, with costs. Memorandum: Plaintiff Buffalo Fire and Safety Equipment Co. appeals from an order denying its motion for summary judgment enjoining defendant from using the business name of Buffalo Fire Protection. We affirm. The complaint asks for relief based on the antidilution statute (General Business Law, § 368-d), but, liberally construed, it may also state a cause of action based upon unfair competition. On this motion, however, plaintiff has not submitted sufficient facts entitling it to an injunction on either theory. Plaintiff's alleged trade name, incorporating the words "Buffalo" and "Fire", is not of distinctive quality and since plaintiff did not submit proof that the name had acquired secondary meaning, it is not entitled to summary judgment for an injunction under the antidilution statute ( Allied Maintenance Corp. v. Allied Mechanical Trades, 42 N.Y.2d 538). An essential element of a cause of action brought to protect a trade name based on unfair competition is the likelihood of confusion ( Allied Maintenance Corp. v. Allied Mechanical Trades, supra, p 543; Dell Pub. Co. v Stanley Pubs., 9 N.Y.2d 126, 132; Eastern Constr. Co. v. Eastern Eng. Corp., 246 N.Y. 459, 464). In its moving papers plaintiff did not establish the particular trade name or names associated with its business it alleged only that for 50 years it has used trade names beginning with the words "Buffalo Fire". Moreover, the only evidence of that fact is contained in the affidavit of plaintiff's attorney who did not claim personal knowledge. Until the particular trade name or names used by plaintiff are established, it cannot be determined whether the name defendant proposes to use is so similar to one used by plaintiff as to be likely to cause potential customers to confuse the plaintiff's products or services with those of defendant.