Blair's Foodland v. Shuman's Foodland
| Decision Date | 26 February 1942 |
| Citation | 311 Mass. 172,40 N.E.2d 303 |
| Parties | BLAIR'S FOODLAND INC. v. SHUMAN'S FOODLAND, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
February 4, 1942.
Present: FIELD, C.
J., QUA, COX, & RONAN, JJ.
Unlawful Interference. Trade Name. Evidence, Competency, Public record. Equity Pleading and Practice, Decree.
The proprietor of a city store, using a name of uncommon usage which by advertising and the building up of a business reputation had acquired in the mind of the public who resided in the area from which he drew his patronage a secondary meaning indicating the store owned and conducted by him, was entitled to injunctive relief against the use of such name by the proprietor of a store of substantially the same character about a mile and a half distant; proof of actual deception of the public was not required.
The fact that public records of a municipal office did not contain a certificate, the absence of which was competent evidence might be shown by testimony of an attorney at law that he had searched those records and had found no such certificate. A mere registration of a trade name in accordance with G. L (Ter. Ed.) c.
110, Section 8, did not give the registrant a greater right to protection against unfair competition by use of the name than he had at common law.
In a suit in equity seeking to enjoin unlawful use by the defendant of a trade name on the ground that the name had acquired a secondary meaning in connection with the plaintiff's business, the plaintiff was entitled to an injunction merely precluding use of the name in connection with any store selling goods of the same nature as those sold by the plaintiff within an area exclusion from which the trial judge should find necessary to protect the plaintiff's rights.
BILL IN EQUITY, filed in the Superior Court on July 15, 1941. The suit was heard by Swift, J.
G. A. Goldstein, for the defendant.
S. B. Stein, (L.
Shulman & H. J. Stein with him,) for the plaintiff.
The plaintiff, a large retail dealer in groceries, meats, fish bakery products and liquors, having a place of business on Washington Street, in the Roxbury district of Boston, brought this bill in equity to restrain the defendant, a retail dealer in articles similar to those sold by the plaintiff and having an established place of business upon the same street, from conducting its business under any name of which the word "Foodland" is a part. The suit was heard by a judge who entered a final decree granting the requested relief. The defendant appealed. The case is here with a transcript of the evidence and a report of the material facts.
The judge found that one Burg, in 1926, conducted "a food provision emporium" in the Roxbury district of Boston under the name of "Blair's Foodland"; that in February, 1926, he became the registrant of the trade name "Foodland" in connection with said business, in accordance with the provisions of our statutes, and used this trade name on his stationery, bill heads and advertisements until 1929, when the plaintiff was incorporated and Burg transferred the business to it including the trade name "Foodland"; that the plaintiff has since continued to conduct the business at the same location under its own name; that the plaintiff deals in all kinds of foodstuffs, employing a large number of people and making gross sales of $1,000,000 a year; that the business is widely advertised and has become well known to the general public; that one Shuman, in 1934 or 1935, opened a store on Washington Street, which was about one and one half miles from the plaintiff's place of business, and at that time knew of the plaintiff's business and the name under which it was conducted; that Shuman was using the name "Foodland" in connection with his business in May, 1941, when he caused the incorporation of the defendant and conveyed his business to it; that the defendant has since maintained this business; and that Shuman was notified by the plaintiff shortly before he formed the corporation that he had no right to use the word "Foodland" in connection with his business. The judge further found that the signs on the plaintiff's store and upon the defendant's store were somewhat alike in the size and character of the letters; that the plaintiff had an exclusive right to use the name "Foodland" under the registration of it as a trade name; and that the word was of uncommon usage and had come to mean the plaintiff's place of business to the public.
These findings of fact are assailed by the defendant, and it is the duty of this court to examine the evidence and decide the case according to its own judgment as to facts, giving due weight to the findings of the trial judge, which are not to be reversed unless plainly wrong. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79 . Spiegel v. Beacon Participations, Inc. 297 Mass. 398 . Buckley v. Buckley, 301 Mass. 530 . Vergnani v. Guidetti, 308 Mass. 450 .
The evidence discloses that the defendant does a much smaller business than the plaintiff; that Shuman selected the name "Foodland" because he liked it better than the terms market, food center, or food mart. He knew that the plaintiff was using the name but he did not know that the plaintiff had the exclusive right to use it. There was evidence that the plaintiff did not know that Shuman was using the word "Foodland" until 1941, at about the time quite a few customers and a representative of a mercantile agency inquired if the plaintiff had any connection with the defendant's store. The findings -- other than the finding that the plaintiff had an exclusive right to the use of this word under the registration statute which is hereafter referred to -- when considered with the evidence, present a case where a term adopted and used by the plaintiff in conjunction with its business has acquired through the years, by advertising and building up a business reputation, a secondary meaning in the minds of the public who reside in the area from which the plaintiff draws its patronage, so as to indicate the store owned and conducted by the plaintiff. The reputation and good will acquired by a merchant in the conduct of his business are valuable property rights which will be protected from unfair methods of a business rival. The defendant undoubtedly has a right equal to that of the plaintiff to establish and maintain a store and to compete with the plaintiff, but it had no right to solicit and secure patronage to the plaintiff's harm by misleading the public into believing that in trading with the defendant it was dealing with the plaintiff. The public was entitled to be free from such deception. The plaintiff was entitled to relief from such interference with its business. It is true that the record does not disclose any instance where actual deception was practised upon any customer of the plaintiff or that there was any mistake in the transmission of orders or delivery of mail to the defendant which were intended for the plaintiff. Proof of actual deception of the public is not required. It is enough if, as here, the similarity of names, of signs, of the nature of the businesses, as well as the locations of the stores are such that a...
To continue reading
Request your trial