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tend to deceive the public into believing that it is listening to the program so copied, and thus will lead to the "passing off" of one program for another, will be restrained. There have been a considerable number of cases involving the protection of "property rights" in titles. I shall mention a few recent ones, as illustrative of the type of protection which the law affords.
In June, 1936, the Appellate Division of the New York Supreme Court reversed the lower Court and temporarily restrained the Metropolis Film Exchange from using the title "Ecstasy of Young Love" for a film it was distributing. The action was brought by Eureka Productions, Inc., the distributor of the film entitled "Ecstasy," which had attained wide notice because of the nature of the subject. Apparently the Court felt that the Metropolis Film Exchange was unfairly attempting, by confusion, to capitalize upon the appetite of the public which had been so whetted.
In 1936, 20th Century-Fox Corporation distributed a motion picture titled "Banjo On My Knee." In advertising this picture at the Roxy Theater in New York, the phrase "tobacco road" was used. Immediately Tobacco Road, Inc., producer of the stage play, "Tobacco Road," sued in the New York Supreme Court to prevent the use of this phrase, on the ground that the public would get the impression that the picture was based upon the stage play. The Court denied temporary relief, however, apparently sustaining the film company's contention that the public was not being deceived, and that the phrase might properly be used to describe the locale of the film story.
Almost at the same time, however, the same Court granted relief to the producer of the stage comedy titled "Red, Hot and Blue," then being presented at the Alvin Theater in New York City. The Court restrained the Minskys, producers of a burlesque show several blocks away from the Alvin Theater, from using the name "Red, Hot and Nude" for their sto:k burlesque show. Undoubtedly the proximity of the two theaters and the possible confusion of the public were of importance in deciding the merits of this case.
It is interesting to note that there have already been at least two court actions commenced which involve the titles of radio programs. In January, 1937, the United States District Court in New York was petitioned by Time, Inc., publishers of Time Magazine, and the film and radio features "The March of Time," to restrain Mr. Barshay from using the title "The Voice of Time" in a broadcasting enterprise. It was claimed that Mr. Barshay was guilty of actionable infringement and unfair trade practices. Time, Inc., set forth that Mr. Barshay was attempting to capitalize on its reputation, and also, by the use of the title, was attempting to create the impression that there was a relationship between the concerns. The Court granted an order temporarily restraining Mr. Barshay from using the title "The Voice of Time" in any way.
In another case, Judge Sweedler, who had organized an arbitration court under the title "Good Will Court," sued the National Broadcasting Company and Mr. A. L. Alexander to restrain them from using the title "Good Will Court" in a radio pro
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