Hale

Plaintiff, HMH Publishing Co., Inc., is the owner and publisher of a magazine which appears under the federally registered trade-mark “Play Boy.” Plaintiff brings this action against defendant Walter Hale who publishes a magazine under the title, “Play Girl.” Plaintiff charges defendant with trade-mark infringement and unfair competition. It seeks to restrain defendant from continued use of the title, “Play Girl” for its magazine. In addition, it asks for damages or an accounting for profits arising out of the acts of infringement and unfair competition.

The evidence shows that plaintiff commenced publication of its magazine “Play Boy” in October, 1953. Promoted as a men’s monthly magazine, “Play Boy” grew from an original sale of approximately 80,000 copies per month to its present circulation of more than three-quarters of a million copies.

Following two years of publication without advertising, “Play Boy” built up circulation to the point where it could accept advertising on a profitable basis. The contents of the magazine, which is designed primarily for the male market, include fiction by well-known authors. In addition, “Play Boy” has sections devoted to so-called art…