Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Wolf, J.
Present — Dillon, P.J., Boomer, Green, Lawton and Davis, JJ.
Judgment unanimously affirmed without costs. Memorandum: Plaintiff Buffalo Packaging Corp., doing business as Buf Pac, contends that the trial court erred in refusing to admit evidence of incidents of confusion of its name with defendant's which occurred after commencement of the action. Although it was error in this equitable action to refuse to consider this evidence (see, 55 N.Y. Jur 2d, Equity, § 45; Arno v Arno, 107 Misc.2d 467, 469), plaintiff's complaint was properly dismissed. Plaintiff's proof failed to establish either that its name was distinctive or had acquired a secondary meaning in the marketplace, or that it had suffered injury to its business reputation (see, Allied Maintenance Corp. v Allied Mechanical Trades, 42 N.Y.2d 538, 543; Sally Gee, Inc. v Myra Hogan, Inc., 699 F.2d 621, 625; P.F. Cosmetique v Minnetonka Inc., 605 F. Supp. 662). Further, its proof did not show that defendant's acts constituted an unfair appropriation or exploitation of any special quality attached to plaintiff's name as required to sustain a common-law cause of action for unfair competition (see, Sample, Inc. v Porrath, 41 A.D.2d 118, affd 33 N.Y.2d 961).