Belvidere Land Co. v. Owen Park Plaza, Inc.

• Decision Date: 02 December 1960
• Docket Number: No. 1,1
• Parties: , 127 U.S.P.Q. 545 BELVIDERE LAND COMPANY, a Michigan Corporation, and Charles Layton, d/b/a Owen Park Apartments, Plaintiffs and Appellees, v. OWEN PARK PLAZA, INC., a Michigan Corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 380

106 N.W.2d 380

362 Mich. 107, 127 U.S.P.Q. 545

BELVIDERE LAND COMPANY, a Michigan Corporation, and Charles

Layton, d/b/a Owen Park Apartments, Plaintiffs and Appellees, v. OWEN PARK PLAZA, INC., a Michigan Corporation, Defendant and Appellant.

No. 1.

Supreme Court of Michigan.

Dec. 2, 1960.

Harry, N. Grossman, Detroit, for appellees.

Wm. Henry Gallagher, Detroit, for appellant. Abraham Satovsky, Detroit, of counsel.

Before the Entire Bench, except SOURIS, J.

EDWARDS, Justice.

In spite of the rich variety of possibilities which life and language afford, these litigants are engaged in a dispute over whether or not defendant may name its apartment building Owen Park Plaza when plaintiffs already own one nearby named Owen Park Apartments.

Owen Park is a public park in the city of Detroit, extending from East Jefferson at Iroquois to the Detroit river. In 1940-1941 plaintiff corporation built a 24-unit apartment building at 825 Iroquois, adjacent to the corner of East Jefferson and across the street from Owen Park. The building was named Owen Park Apartments. A sign with that name was placed on the building and the name was listed in the phone book. In 1949 plaintiff Charles Layton, sole stockholder of plaintiff Belvidere Land Company, filed a certificate with the Wayne county clerk under C.L.S.1956, § 445.1 (Stat.Ann.1959 Rev. § 19.821), indicating that he was doing business under the assumed name of Owen Park Apartments.

In 1953 defendant was incorporated with the Michigan corporation and securities commission, under the name Owen Park Plaza, Inc. And in 1954 defendant corporation built an apartment building 200 feet across Jefferson from plaintiffs' building, and abutting Owen Park. It placed a sign on this building reading Owen Park Plaza. When written protest failed to cause defendant to remove or change the sign, plaintiffs filed this suit alleging confusion and unfair competition, and seeking a permanent injunction against use of the name.

At the hearing, the manager of plaintiffs' Owen Park Apartments testified that after the Owen Park Plaza opened, he received 10 to 15 calls a week inquiring about rentals in the new apartment building--that the calls interfered with his work--that the telephone listing under Owen Park Apartments was taken out of the phone book, but that he still had from 1 to 5 visitors in person each day inquiring about the Owen Park Plaza or its residents.

The circuit judge held that there was actual and prospective confusion:

'It requires no more than a reading of the names involved herein, 'Owen Park Apartments,' and 'Owen Park Plaza,' to realize that confusion must naturally and necessarily result from the readily apparent similarity of names of apartment buildings in such close proximity to one another. But, lest confusion alone be not sufficient justification for the exercise of the court's injunctive powers, it is appropriate to examine plaintiff's claimed injury

'As noted above, the only evidence of injury offered by plaintiffs was testimony relating to the not inconsiderable inconvenience to the manager of plaintiff corporation's apartment building in answering the aforedescribed telephone and personal inquiries and the resultant interference with his work, to say nothing of his 'rest at night.' Without implying that such evidence was insufficient to establish injury to plaintiff corporation, reference is again made to 220 Bagley, at page 477 [220 Bagley Corp. v. Julius Freud Land Co., 317 Mich. 470, 27 N.W.2d 59], where the Supreme Court said that it is not necessary to show that actual loss has already occurred and then quoted the following from Nims on Unfair Business Competition, section 226:

"It is sufficient if injury to the plaintiff's business is threatened or imminent to authorize the court to intervene to prevent its occurrence.'

'The competent evidence offered at the trial does not disclose the reason for plaintiff corporation's discontinuance of its telephone listing under the name, 'Owen Park Apartments,' but it can be safely inferred from that competent evidence which was offered that the harassing and frequent telephone inquiries referred to above compelled its discontinuance after defendant had refused the plaintiffs' requests to change the name of 'Owen Park Plaza.' Discontinuance of a telephone listing under a name theretofore used for upwards of 15 or 16 years, compelled under such circumstances as herein involved, cannot be considered an insignificant loss, particularly in view of the fact that such a telephone listing may well be a factor of convenience considered by tenants and prospective tenants of plaintiff corporation's apartment.'

He issued a permanent injunction restraining defendant from employing the name Owen Park Plaza on its apartment building. Relying on C.L.S.1956, § 450.6 (Stat.Ann.1959 Cum.Supp. § 21.6), which forbids a corporation assuming any name 'which is likely to mislead the public,' he also enjoined defendant's use of 'Owen Park' in its corporate name.

On appeal, defendant contends that the circuit judge erred in admitting hearsay evidence of plaintiffs' building manager--that the names of the apartments are distinguishable and that plaintiffs did not sustain the burden of proof in relation to confusion and unfair competition, and further that 'Owen Park' was a geographic or place name not subject to exclusive appropriation.

As to the evidentiary issue, defendant-appellant concedes and the fact of plaintiffs' manager receiving the phone calls is admissible, but contends that identification of these calls as inquiries about Owen Park Plaza represents inadmissible hearsay.

We regard the circuit judge's ruling as correct.

Appellant relies upon Wigmore test of hearsay:

'* * * the Hearsay rule, as accepted in our...