220 Bagley Corp. v. Julius Freud Land Co.

• Decision Date: 17 April 1947
• Docket Number: No. 53.,53.
• Citation: 27 N.W.2d 59,317 Mich. 470
• Parties: 220 BAGLEY CORPORATION v. JULIUS FREUD LAND CO. et al.
• Court: Michigan Supreme Court

317 Mich. 470

27 N.W.2d 59

220 BAGLEY CORPORATION

v.JULIUS FREUD LAND CO. et al.

No. 53.

Supreme Court of Michigan.

April 17, 1947.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County, in Chancery; Thomas J. Murphy, judge.

Action by 220 Bagley Corporation against Julius Freud Land Company and others for injunction against use of word ‘Michigan’ in name of building. From a decree for plaintiff, defendants appeal.

Affirmed.

Before the Entire Bench.

Sempliner, Dewey, Stanton & Honigman, of Detroit (A. W. Sempliner, Jason L. Honigman, Milton, J. Miller, and Norman Sommers, all of Detroit, of counsel), for plaintiff and appellee.

Harry Robbins and Shapero & Shapero, all of Detroit, for defendants and appellants.

DETHMERS, Justice.

Plaintiff corporation is the owner of an office building in Detroit which, since 1936, has borne the name ‘Michigan Building.’ About nine blocks distant is an office building owned by defendants, which was known at ont time as the Guaranty Trust Building. Recently defendants changed the name of their building to ‘Michigan Bank Building.’ Plaintiff thereafter brought this suit to enjoin defendants from using the word ‘Michigan’ in the name of their building.

The plaintiff offered as expert witnesses a general foreman in the office of the superintendent of incoming mails of the Detroit Post Office, an advertising executive and the secretary of the Detroit Office Building Association, experienced in office building management. They testified that the similarity of names of the two buildings is so great that substantial confusion is bound to result; that such confusion would make the plaintiff's building less desirable from a tenant's viewpoint because their customers or clients would have difficulty in locating the correct building and because mail and merchandise would be misdelivered.

The proofs show that since the change was made in the name of defendants' building, confusion has resulted in the delivery of mail and merchandise and persons having business with tenants of defendants' building have looked for their offices in plaintiff's building.

While office space is now at a premium and both buildings are fully occupied, it is plaintiff's position that as times approach normalcy and competition for tenants is again resumed, plaintiff will be injured by such confusion because tenants will be reluctant to lease space in plaintiff's building under such circumstances.

It is the defendants' contention that there is no such similarity in names of the two buildings as to cause confusion to others than the careless and indifferent, that such confusion as is caused is slight and insignificant, and that plaintiff has shown no actual injury or damage as a result thereof and that, therefore, plaintiff is not entitled to injunctive relief. Defendants have cited a number of cases in which injunctive relief was sought to prevent alleged similarity of business or trade names and denied. These cases are Central Mutual Auto Insurance Co. v. Central Mutual Insurance Co. of Chicago, 275 Mich. 554, 267 N.W. 733;Detroit Savings Bank v. Highland Park State Bank of Detroit, 201 Mich. 601, 167 N.W. 895;Federal Engineering Co., Inc., v. Grieves, 315 Mich. 326, 24 N.W.2d 138;Metal Craft Co. v. Grand Rapids Metalcraft Corp., 255 Mich. 638, 239 N.W. 363;Michigan Savings Bank v. Dime Savings Bank, 162 Mich. 297, 127 N.W. 364,139 Am.St.Rep. 558;Supreme Lodge Knights of Pythias v. Improved Order Knights of Pythias, 113 Mich. 133, 71 N.W. 470,38 L.R.A. 658 and Young & Chaffee Furniture Co. v. Chaffee Brothers Furniture Co., 204 Mich. 293, 170 N.W. 48. In these cases either it was found that the similarity of names was so slight as to be unlikely to confuse others than the careless or indifferent, or they involved banks or insurance companies or concerns doing business with a specialized field. As to these latter situations, this court has said:

‘There is probably greaater latitude allowed to banks and insurance companies in the similarity of corporate names than in the case of ordinary mercantile corporations.’ Central Mutual Auto Insurance Co. v. Central Mutual Insurance Co. of Chicago, 275 Mich. 554, 560, 267 N.W. 733, 735.

‘Where a business offers its services only to a small highly specialized group, capable of close discrimination, * * * a greater degree of similarity will be tolerated than where the business offers itself generally to all comers.’ Federal Engineering Co., Inc., v. Grieves, 315 Mich. 326, 334, 24 N.W.2d 138, 141.

The cases cited by defendants are inapplicable to the situation presented in the case at bar.

The statute regulating the use of corporate names, Act 327, § 6, Pub.Acts 1931, Comp. Laws Supp. 1940, § 10135-6, Stat.Ann. § 21.6, is not here involved nor are the cases construing it necessarily controlling in the instant case. Plaintiff's case must rest upon claimed unfair competition as in the cases of Bell v. Service Coal Co., 280 Mich. 172, 273 N.W. 435;Dayton v. Imperial Sales & Parts Co., 195 Mich. 397; 161 N.W. 958;Furniture Manufacturers Ass'n of Grand Rapids v. Grand Rapids Guild of Exhibitors, 268 Mich. 685, 256 N.W. 595;Schwannecke v. Genesee Coal & Ice Co., 262 Mich. 624, 247 N.W. 761.

In the Schwannecke case plaintiff had done business for years under the name ‘Genesee Coal Company.’ Defendant thereafter started business in the same locality using the name ‘Genesee Ice and Fuel Company.’ In holding that this course of action by defendant resulted in unfair competition, this court quoted the following:

“It is the words of a name which the eye first catches or rests upon which fix it in our minds.' Grand Rapids Furniture Co. v. Grand Rapids Furniture Shops, 221 Mich. 548, 552, 191 N.W. 939.'

The case of Metal Craft Co. v. Metalcraft Heater Corp., 255 Mich. 642, 239 N.W. 364, 365, also stresses the greater likelihood of confusion resulting from similarity of names when such similarity is occasioned by identity of the dominant word in the two names. The court said:

‘Confusion of names...