West

This is an appeal from an order denying a preliminary injunction sought by the appellant, Mae West, to restrain the respondent, Marie Lind, from using the name “Diamond Lil” and the respondent, Gay 90’s, a corporation, from billing and advertising the respondent, Marie Lind, as “Diamond Lil” or “The One and Only Diamond Lil.” After the hearing on the order to show cause, at which oral and documentary evidence was introduced, the court found that the description “Diamond Lil” involved words of common usage in the public domain, which were not susceptible to appropriation to a given individual, and were not subject to appropriation by the appellant in the manner asserted by the appellant.

On appeal, it is argued that the trial court erred in the above mentioned finding and conclusion because: (1) The appellant has stated a cause of action in unfair competition, as the designation “Diamond Lil” has, over a long period of time, been associated exclusively with her; (2) the appellant has created a valuable property right in a character type; and (3) injunctive relief is proper in order to prevent the usurpation of the secondary meaning attained by the name “Diamond Lil” and to prevent…