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http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=46762 Justice Rudolph PLAINTIFF, INCORPORATED in 1992, sued defendant, incorporated in 2001, for starting a similarly named business. Asserting violations of General Business Law ��133 and 360-1, �43(a) of the Lanham Act and the common law against unfair competition, plaintiff claimed that defendant’s use of “Total Energy” would dilute the distinctive quality of a mark or trade name, cause confusion and unfairly appropriate a special quality attached to its name. The court dismissed plaintiff’s action and deemed defendant to be entitled to damages. It found “Total Energy” to be a generic or descriptive term lacking special qualities providing a secondary meaning, thus depriving the term of protection under GBL �360-1 and the Lanham Act. Despite finding an issue of fact as to defendant’s use of “Total Energy” with an intent to deceive, the court found that plaintiff failed to establish that its “merely descriptive” name had acquired a secondary meaning.

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