Altitude Express, Inc. v Long Is. Skydiving Ctr.

[*1] Altitude Express, Inc. v Long Is. Skydiving Ctr. 2004 NY Slip Op 51836(U) Decided on December 9, 2004 Supreme Court, Suffolk County Pitts, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 9, 2004
Supreme Court, Suffolk County

Altitude Express, Inc. d/b/a SKYDIVE LONG ISLAND, Plaintiff,

against

Long Island Skydiving Center, Defendant.



16293/04



Michael P. Sendlenski, Esq.

Atty for the Plaintiff

206 Roanoke Avenue

P. O. Box 329

Riverhead NY 11901

John J. Lee, Esq.

Atty for the Defendant

320 Carleton Avenue

Central Islip NY 11722

Arthur G. Pitts, J.

ORDERED that the defendant Long Island Skydiving Center Incorporated's [*2]motion for an order dismissing the plaintiff Altitude Express, Inc., d/b/a Skydive Long Island is granted under the circumstances presented herein. ( CPLR 3211)

In the matter at bar the plaintiff Altitude Express, Inc., d/b/a Skydive Long Island has commenced an action pursuant to General Business Law 133 seeking injunctive relief, monetary damages and an accounting as to defendant Long Island Skydiving Center Incorporated. The defendant registered its corporate name and business address

Altitude Express v Long Island Skydiving Index No. 16293/04 Page 2

on February 4, 2003 and designated the business as one providing "skydive related

services." The plaintiff incorporated on January 5, 1995 under the name "Altitude Express, Inc. and on January 17, 1995 filed a certificate of assumed name with the New York Secretary of State assuming the name Skydive Long Island. The plaintiff avers that because of the similarities between the parties names, the public and its customer base has been confused to the plaintiff's detriment and as such, the defendant has intentionally violated the mandates of General Business Law 133.

It is well settled that mere proof of the adoption of a similar name without any evidence of intention, deception, or damages is insufficient to support a cause of action sounding in General Business Law 133. ( see Frank's Rest. Inc., v. Lauramar Enterprises, Inc., 273 AD2d 349, 711 N.Y.S.2d 433 [2nd Dept. 2000] ) In the record before the Court, the plaintiff has failed to proffer any evidence of such intent on the part of the defendant. It appears that the plaintiff further alleges by its verified complaint that the subject name, Skydive Long Island, is a trademark which the defendant is seeking to infringe upon based upon its choice of a name for its business. However, to be such an infringement pursuant to General Business Law 133, said name must also have a secondary meaning which can only be established when the name's primary significance to the consuming public is not the descriptive information it imparts, but rather the name's association with the plaintiff's services. [citations omitted] ( Gasoline Heaven at Commack, Inc., v. Nesconset Gas Heaven, Inc., 191 Misc 2d 646, 743 N.Y.S.2d 825 [ Sup Ct, Suffolk Cty 2002] ) Herein, the name Skydive Long Island fails to meet such criteria. Accordingly, pursuant to the foregoing and the circumstances presented herein, the defendant's motion is granted. [*3]

Submit order.

J.S.C.

Clerk's Use Only: Final Disposition