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Topic 3. Diversion of the Relation by Imitation of Name or Mark

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SUB-TOPIC A: UNFAIR TRADE, AT COMMON LAW1

167. DODERIDGE, J., in Southern v. How (King's Bench, 1618; Poph. 144). . . . Doderidge said, that 22 Eliz. an action upon the case was brought in the Common Pleas by a clothier, [alleging] that whereas he had gained great reputation for his making of his cloth, by reason whereof he had great utterance to his great benefit and profit, and that he used to set his mark to his

original and an English translation, must the translation be proved to be correct? (1906, Romans v. Devito, 191 Mass. 457, 78 N. E. 105.)

Defendant wrote a libellous letter and addressed it to "G. H., C. H." It was received by C. H. and handed by him to G. H., who opened and read it. C. H. sues. Was there a publication? (1901, Schmuck v. Hill, — Nebr. —, 96 N. W. 158.)

"Tell Sarah to bring back the door she stole from my house." Is this libellous, without more shown? (1987, Blackburn v. Clark, — Ky. —, 41 S. W. 430.) The plaintiff and the defendant were quarrelling loudly. The cause of the quarrel was the defendant's maintenance of a stable near the plaintiff's dwelling. The defendant was an angry old woman of eighty. Finally she called the plaintiff "swindler." Was this actionable? (1896, Mihojevich v. Bodechtel, 48 La. An. 618, 19 So. 672.)

"B. in hands of notary." Is this libellous, without more shown? (1893, Continental Bank v. Bowdre, 92 Tenn. 723, 23 S. W. 131.)

A telegraph operator transmits by telegraph a defamatory message. Is it to be tested by the rules of libel, or of slander only? And is there a publication? (1898, Peterson v. Tel. Co., 72 Minn. 41, 74 N. W. 1022.)

After a trial in court, the defendant said of the plaintiff, "I wouldn't have sworn to a lie as you did, for all that was involved." In an action for slander, many bystanders, who heard, testify whether the defendant's statement affected in any way their esteem of the plaintiff? (1910, Linehan v. Nelson, — N. Y. 90 N. E. 1114.)

The plaintiff kept an academy in which the pupils were required to perform military drill, and, as at West Point, a weekly class in dancing was part of the training. The defendant, on behalf of a committee of pastors who regarded dancing as immoral, sent around a circular advising parents not to patronize the academy, because it was a "hotbed of immorality." Was this libellous? (1894, St. James Military Academy v. Gaiser, 125 Mo. 517, 28 S. W. 851.)

A libellous letter is dictated to and typewritten by a stenographer. Is this a publication? (Pullman v. Hill, 1891, 1 Q. B. 524; 1904, Puterbaugh v. G. M. F. M. Co., 7 Ont. L. R. 582; 1901, Gambrill v. Schooley, 73 Md. 48, 48 Atl. 720.) NOTES:

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243.)

Application to plaintiff: Initials used to indicate name." (H. L. R., VII, "Consent to publication; whether bar to action." (H. L. R., X, 181; XIV,

225.)

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Agent of plaintiff, publication to." (H. L. R., X, 181.)

"Dictation to stenographer." (H. L. R., VIII, 53; XV, 230; XII, 355.) "Acts and words actionable: Laudatory words: nature of action for." (H. L. R., XIX, 527.)]

1 [For the circumstances which may justify a defendant in using his own name or that of his place, to designate his goods, even though it injures the plaintiff, see Book III, Title C, Sub-title (III).]

cloth, whereby it should be known to be his cloth: and another clothier perceiving it, used the same mark to his ill-made cloth on purpose to deceive him; and it was resolved that the action did well lie.

168. DAY v. BINNING

VICE-CHANCELLOR'S COURT. 1831

C. P. Coop. 489

THE plaintiff and the defendant were manufacturers of blacking, and the latter sold his blacking in bottles, which not only resembled the bottles used by the plaintiffs, but were labelled in a similar manner; the only difference between the two labels was that the label of the plaintiffs described their blacking as "manufactured by Day & Martin," whilst that of the defendant described his blacking as "equal to Day & Martin's." The words "equal to" were printed in a very small type. An injunction was granted ex parte to restrain the defendant from using any labels in imitation of those of the plaintiffs.

169. WEINSTOCK, LUBIN, & COMPANY v. MARKS

SUPREME COURT OF CALIFORNIA.

109 Cal. 529, 42 Pac. 142

1895

APPEAL from a judgment of the Superior Court of Sacramento County. Matt F. Johnson, Judge.

The facts are stated in the opinion of the Court.

Holl & Dunn, for appellant. The word "mechanics" is a generic term, and generic terms cannot be appropriated as trademarks. The plaintiff cannot claim the exclusive use of the word "mechanics" as a trademark, for the reason that he has not filed such claim with the secretary of state as provided by the statute. . . . The Court has no power to command the defendant to place and maintain a sign showing the name of the owner. The object of a mandatory injunction is to restore matters in statu quo.

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Johnson, Johnson & Johnson, for respondent. All practices between rivals in business which tend to engender unfair competition are odious, and will be suppressed by injunction. . . . The use of a trade name to designate a business so similar to that of another as to raise a strong probability of misleading and deceiving the public will be restrained. . . It was within the power of the Court to order the defendant to put signs upon his building in such a manner that persons intending to trade would know that they were trading in his store, and not in that of the plaintiff.

GAROUTTE, J. Plaintiff is a corporation carrying on a large clothing and dry-goods business in the city of Sacramento. Defendant is also

a dealer in clothing of the same general character, and is carrying on business in a building adjoining plaintiff's place of business. The present action is one of injunction, and by its decree, among other things, the Court ordered defendant to refrain from further use of the name “Mechanical Store" as the designation of his place of business, and further decreed that defendant maintain and place in a conspicuous part of his store, and also in a conspicuous place on the outside or front thereof, a sign showing the proprietorship of his said store, in letters sufficiently large to be plainly observable by passers-by and customers entering therein. Defendant appeals from the foregoing portions of the judgment.

The judgment is based upon certain findings of fact made by the trial Court upon the evidence offered at the trial, and no complaint is now heard that this evidence does not fully support these findings. It therefore follows that the merit of this appeal presents itself upon a consideration of those findings and the decree based thereon. These findings of fact are full and in detail, and, for present purposes, we deem it sufficient to state the general tenor and effect of some of them.

(1) The Court finds that on or about the 8th day of October, 1874, H. Weinstock and D. Lubin entered into a copartnership under the firm name and style of Weinstock & Lubin, of the city of Sacramento, and, as such partners, engaged in the business of dealing in wearing apparel for men, women, and children, and that said Weinstock & Lubin selected as the name of their place of business "Mechanics' Store," and designated the same by that appellation, by which name their said store thenceforth was continually known; that, in the management and conduct of their business, they fixed a price upon each and every article carried by them in the stock of said store, and marked the said prices in figures upon each article, and sold such articles at the prices so marked, and never deviated therefrom; and they advertised the said method of doing business extensively throughout the entire Pacific coast by means of newspapers, etc., by means whereof their said method of doing business became widely known to the trade and public throughout the entire Pacific coast, and by reason whereof it became and was well known to the trade and public in California and the other States and Territories of the Pacific coast that at the store of said Weinstock & Lubin only one price was charged for goods sold therein, and that no deviation from said price was permitted.

(2) That, by care, attention, skill, and strict adherence to business and the rules as aforesaid, this plaintiff has materially increased the volume and importance and value of said business, and enhanced the good will thereof, and the said plaintiff has established for the said store and business throughout the said States and Territories a wide and honorable reputation, and thereby said business has become extensive and valuable and profitable, and the public have become accustomed to plaintiff's said method of doing business, and have been induced to

rely, and do rely, upon the good faith of the plaintiff in managing and conducting its business in the manner aforesaid, and by reason thereof have been induced to bestow and do bestow upon the plaintiff their custom, trade, patronage, and business.

(3) That on or about 1885 the defendant, who had previously been engaged in business elsewhere, and was without any established reputation of his own, and whose business was unknown to the trade and general public, removed his business from the place he then occupied to the premises on the east of and near the premises of this plaintiff; and the defendant then and there engaged in a similar line of trade as this plaintiff, and ever since then he has maintained and conducted, and still maintains and conducts, the said store at said place, and carries on the said business therein; and he named his store in the year 1887 or thereabouts the "Mechanical Store."

(4) That the defendant, well knowing the foregoing facts, and contriving, intending, and designing fraudulently to injure this plaintiff, and to obtain undue advantage of plaintiff, and to deprive the plaintiff of its business, and fraudulently and unlawfully to increase his own business, and to pirate and make use of and appropriate to himself the good will of the plaintiff's business, and the said reputation and honorable esteem and confidence that the plaintiff enjoyed in the minds of the people of the Pacific coast, and in order to create confusion in the public mind, and to take advantage of the standing that the plaintiff by its aforesaid acts had acquired in said territory, and fraudulently designing to deceive the public and people intending to trade with the plaintiff, and to divert the custom of the plaintiff to himself, and to deprive the plaintiff of its customers and of the trade, and to induce the people to trade with the defendant under the belief that they were trading with the plaintiff, and for the purpose of deceiving plaintiff's customers and persons intending to trade with plaintiff into believing that the defendant's store was that of the plaintiff, and thereby inducing them to enter said store of defendant to trade with said defendant, to his profit, and in order to carry out his fraudulent and corrupt designs as aforesaid, the defendant has persistently carried out a system of deceit and misrepresentations concerning his store and its ownership, in connection with plaintiff's store and business, as follows: That in 1891 plaintiff, at its place of business, erected a store, the front of which is of peculiar architecture, containing arches and alcoves, of which there was none other similar in the city of Sacramento; that afterwards the defendant, at his said place of business, and adjoining plaintiff's store, erected a building which, so far as the first or lower story is concerned, was and is similar in architecture in every respect to the store of plaintiff, so much so that passers-by were liable to go into the store of defendant thinking that they were entering the store of plaintiff, and that customers of plaintiff in many instances did so enter the store of defendant thinking they were in the store of plaintiff; that defendant had no sign inside

of his store or on the outside of his store by which customers could for themselves ascertain the true proprietorship thereof; that the erection of the defendant's building exactly the same as plaintiff's building in every particular, and the adoption of the use of the words "Mechanical Store," and the absence of any name or sign upon or in defendant's store designating the true proprietorship of defendant's store, were all done by the defendant for the purpose of deceiving the public, and more especially plaintiff's customers, and enticing and pirating and securing the patronage of said customers from plaintiff to defendant.

(5) That, by the aforesaid means the defendant has diverted from the plaintiff a large part of plaintiff's trade and custom; has induced many persons to trade with the defendant who otherwise would have traded with the plaintiff; has sold large quantities of goods in his said store to persons who, but for said acts of defendant, would have purchased said goods of the plaintiff; has deprived the plaintiff of a large share of its legitimate profits; has injured the business and reputation of the plaintiff; has impaired the confidence of the public in the plaintiff and its method of doing business; and has deprived the plaintiff of a large number of its customers and patrons.

The foregoing chapter of facts makes interesting reading, and we first turn our attention to that portion of the judgment restraining defendant from the further use of the words "Mechanical Store" as a designation of his place of business. We see but little difficulty in arriving at a conclusion upon this branch of the case. Defendant assails the judgment in this particular with but a single weapon. He insists that the words "Mechanics' Store" are not the subject of trademark, and that, therefore, plaintiff can have no exclusive right to them. As we view the picture presented by the findings of fact, the question as to what may or may not be the subject of trademark is not the problem to be solved. That these words are of a kind that may be used as a trade name we have no doubt, and, having established that fact, we are required to pursue the investigation no further. That certain names and designations which may not become technical or specific trademarks may become the names of articles or of places of business, and thereby the use thereof receive the protection of the law, cannot be doubted, for the cases everywhere recognize that fact. The learned judge said in Lee v. Haley, 5 Ch. App. 155:

"I quite agree that they [the plaintiffs] have no property right in the name, but the principle upon which the cases on this subject proceed is not that there is property in the word, but that it is a fraud on a person who has established a trade, and carried it on under a given name, that some other person should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name."

A similar doctrine is declared in Manufacturing Co. v. Hall, 61 N. Y. 226, and also in the late case of Coats v. Thread Co., 149 U. S. 562,

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