5-Spot Short Range Gun Clubs of America v. Rinehart
| Decision Date | 23 May 1937 |
| Citation | 56 Ohio App. 259,10 N.E.2d 450 |
| Parties | '5'-SPOT SHORT RANGE GUN CLUBS OF AMERICA, Inc., v. RINEHART et al. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. A court of equity will not extend its powers to protect a gambling enterprise from 'unfair competition.'
2. While a target-shooting game as such is one of skill, it is one to win money and a game of chance when the players or a player and the house bet money on the success of the player's shots, and it is a violation of Section 13059 General Code, and the apparatus used to play such a game is a gambling device within the meaning of Section 13056, General Code, and in both aspects violates Section 963 of the Ordinances of the city of Toledo.
3. When a shooting gallery offers a reward of $5 to one who in three shots obliterates a figure 5 on the target, and the gallery charges each player ten cents a try to win such award, and 25 per cent. of all such fees is added to the reward until some player is successful in winning it, the same is a wagering game within Section 13059, General Code.
Flory & Taylor and Fred W. Preece, all of Toledo, for appellant.
Eldon H. Young, of Toledo, for appellees.
This cause is in this court on appeal on questions of law and fact. It is a suit to enjoin the defendants, appellees Wilbur J. Rinehart et al., from carrying on a line of business which plaintiff, appellant, the '5'-Stop Short Range Gun Clubs of America, Inc., alleges amounts to unfair competition with its previously established similar business.
The plaintiff is a corporation composed of several individuals, a part of whom claim to have conceived the original idea of a distinctive short-range shooting gallery in which the customers play the game of shooting at a specially devised target to try to win a cash prize offered by the house, or the management of the gallery. Plaintiff claims this idea was conceived by some of its officers in the winter of 1935-1936 and was set in operation by the establishment of such shooting galleries in the spring and summer of 1936. Several such galleries are operated by plaintiff in Toledo, and several hundred have been licensed by it in various parts of the United States.
The principal features claimed to be distinctive are the short range and the target, which is a white, rectangular card about seven inches high and five inches wide, with a small figure 5 printed in red in each corner. This target is placed on a certain background about eight and one-half feet from the player, who uses a regular .22-caliber rifle, and the game is to obliterate one figure 5 in three shots. As a consideration to try to win the game and with it the cash prize offered, the player pays 10 cents for each three shots. The prize is a cash award called a 'jack pot' offered by the house. To set this up, the house starts by putting up $5 and, when each figure 5 on a card target has been shot at, which for the four 5 spots represents four 10-cent fees paid by the players, 10 cents is added to the jack pot. This continues until a player in three shots completely obliterates a figure 5 and gets the jack pot, when a new one is started. As each new target is posted, the then amount of the jack pot is written on it, so the player has before him what he will get if he shoots out a figure 5.
In addition to these things, the plaintiff has established a distinctive type of decorations inside all of its galleries with certain standard placards, window signs and advertising, all featuring the term '5 spot.' Plaintiff has copyrighted the target, registering the term '5-spot' as a trade-mark, both in the office of the secretary of state of Ohio and in the United States Patent Office, and has secuted a patent on the target in the United States Patent Office. The privilege of using these exclusive devices is given to licensees on certain terms.
The claim is that the defendants have stolen plaintiff's ideas and are operating similar shooting galleries in Toledo in which they have simulated all the distinctive features of the plaintiff's galleries and its manner of operating them. They point out especially the short range, the inside draperies and placards, that all window signs are similar, and for a target they use a letter J shaped much like a figure 5, printed in red on the four corners of a diamond shaped white card. They call their places 'Jack Pot' galleries.
The plaintiff claims these things mislead the public to think defendants' galleries are those of the plaintiff, and thereby the public is deceived and the plaintiff damaged by such 'unfair competition.'
The defendants, by answer, set up several defenses, among them, that the ideas were not original with the plaintiff group but were in use long prior to their use or claimed conception by them, and that plaintiff's business 'is a money wager based on the outcome of a contest of skill' and is contrary to the gambling statutes, and therefore not entitled to the protection of a court of equity.
The defendants presented some evidence that similar short range shooting galleries using a figure 5 as a target had been in operation in Alabama in 1934. However, the chief defense is the frank claim that the business of both parties violates the gaming laws and is therefore illegal and that a court of equity should not interfere to protect it.
If plaintiff's business is a violation of any of the gambling laws the court must deny it the relief sought, and the issue as to unfair competition is unimportant.
Defendants, by their amendment in their answer, call attention to Section 963 of the Ordinances of the city of Toledo, which is as follows:
etc.
There are several sections in the chapter on 'gambling' in the Criminal Code of Ohio which might be considered in the determination of this issue, but two of them illustrate the phases requiring examination here. They are:
Section 13056, General Code: 'Whoever permits a game to be played for gain upon or by means of a device or machine in his house or in an out-house, booth, arbor or erection of which he has the care or possession, shall be fined,' etc.
Section 13059, General Code: 'Whoever plays a game for money or other thing of value or makes a wager for money or other thing of value, shall be fined,' etc.
Is target shooting a 'game'? The plaintiff says it is. Is the equipment used a 'device' upon which the ...
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