Blue Goose Auto Serv., Inc. v. Blue Goose Super Serv. Station, Inc.
| Decision Date | 31 May 1932 |
| Citation | 160 A. 836 |
| Parties | BLUE GOOSE AUTO SERVICE, Inc., et al. v. BLUE GOOSE SUPER SERVICE STATION, Inc. |
| Court | New Jersey Court of Chancery |
Syllabus by the Court.+++
1. The Chancellor, as the trier of the facts of a case before him, is the judge of the credibility of the witnesses, and, like a jury, does not have to believe a particular witness; and he may disbelieve a witness whenever there is reason therefor.
2. A party seeking equitable relief by means of injunction must apply to the court promptly therefor. Such party cannot stand by, even complaining, until the alleged wrongdoer has by diligence and labor largely built up and increased his business, taking no legal steps whatever, and then demand the interference of a court of equity, by means of injunction, to deprive him of the fruits of his diligence and labor.
3. There must be actual competition in business before there can be unfair competition.
4. The test whether the use of a trade-name amounts to unfair competition is whether the public is likely to be deceived thereby.
5. Held, upon the proofs herein, that defendant's place of business in Englewood, Bergen county, cannot be said to compete with complainants' place of business in Newark, Essex county, the two businesses being separated by a distance of 23 or 25 miles, the defendant not advertising for or soliciting business outside of Bergen county, and no proofs establish that complainants could reasonably, hope to be favored with any of the business flowing to defendant's business establishment in Englewood if such establishment was not located therein. National Grocery Co. v. National Stores Co., 95 N. J. Eq. 588. 123 A. 740, affirmed 97 N. J. Eq. 360, 127 A. 925, followed.
Suit by the Blue Goose Auto Service, Inc., and another against the Blue Goose Super Service Station, Inc.
Bill dismissed.
Decree reversed in 160 A. 316.
Nicholas S. Schloeder, of Union City, for complainants.
Louis Liebowitz, of Englewood, for defendant.
FALLON, Vice Chancellor.
I am going to determine this matter now. I am convinced that the complainants are not entitled to the relief prayed by them. In the first place, I consider that there could not be any relief granted to both the complainants, even though relief should be granted on the proofs in this case. There is manifestly a misjoinder of complainants in this suit. The suit is filed in behalf of Blue Goose Auto Service, Inc., and Henry H. Levin. It appears from the proofs in this case the complainant Levin engaged in business in the city of Newark under the trade-name Blue Goose Super Service Station. It was intimated by said complainant that he filed a certificate of such trade-name in the county of Essex. There is no proof before me to that effect. If he filed such certificate, he ought to have been able to establish the fact by proper proof. But whether he filed the certificate or not appear to me a matter of inconsequence for the purpose of my determination of this cause. Levin, it appears, was engaged with some other business concern, a corporation, previous to the name of the Blue Goose Auto Service being used, and several years ago effected a change of the corporate name to Blue Goose Auto Service, Inc. The corporation was engaged in business in what was then known as the town of West Hoboken, which subsequently became the city of Union City by reason of the consolidation of the town of West Hoboken with the town of Union. The place of business fronted on the Hudson County boulevard and ran through to a street called Kerrigan avenue. The nature of the business the complainant corporation was engaged in was the servicing of automobiles; not only the furnishing of gas and accessories such as oil, tires, and the like, but also giving attention to brakes on autos. In other words, it was intended within the word "servicing" to comprehend all attention required to be given to automobiles in order to make them in good condition for operating.
The business of such corporation was discontinued in August, 1926. The complainant Levin first testified that it was discontinued in 1927; he stated the business was operated from 1925 to 1927. Subsequently he corrected his testimony so as to make the period from 1925 to August, 1926. The place of business which had been conducted by the Blue Goose Auto Service, Inc. was after August, 1926, operated for laundering of cars (washing of cars I assume is meant) by other parties, but the name "Blue Goose", continued to remain on some part of the building, although not to the extent it had been displayed previously. Levin, it appears, established himself in business in the city of Newark. He says he opened such place of business in August, 1927. Whether he is mistaken in that or whether it was August, 1926, I deem it unnecessary to comment upon at this time. He says he has been engaged in business there for a period of three years under the name "Blue Goose Super Service Station." Counsel for complainants has laid stress in this case upon the use of the words "Blue Goose" and the word "Super" as applied to the word "Service." Throughout the conduct of the case he seemed to emphasize the word "Super" as having a distinctive meaning and that the words "Blue Goose" had a distinctive meaning, valuable to the complainants. But the proofs manifest that the complainant Levin did not so regard it in so far as his own place of business was concerned because, the name "Blue Goose" was used in the operation of several other automobile stations which were enumerated in this case, without objection by him. It was stated that the words "Blue Goose" were used in connection with stations in Bergenfield, N. J., and Hackensack, N. J. It was stated also that Levin's brothers owned or controlled one of such places. His brothers conducted another place mentioned, although Levin is said to have had an interest of some kind in that place. It also appears that one of the stations thus established, using the name "Blue Goose," was sold to Tidewater Company about a year or more ago. It is indicated the Tidewater Company continued the use of the name "Blue Goose" in connection with that station. That was the Bergenfield station. The complainant Levin says that in September, 1028, Davis, whom it is said operated the defendant corporation and substantially controlled it, visited, with his wife, Levin's plant in Newark, and there made known to Levin that he (Davis) was interested in opening up a place of his own and was desirous of inspecting the class of brake machine Levin had installed in his place of business.
Considerable has been said by counsel for the complainants in his summation apparently intended to indicate to the court that the brake appliances made use of by the complainants in the operation of the Newark business were of special value. Stress was laid upon the brake machine in Levin's Newark plant. It was said there was but one other of its particular make within a great distance from the complainants' plant in Newark. It was said by one of the witnesses that the only other kind of such brake machine was in New York. Yet I recall there was something said by Levin to the effect there was another such brake machine in Newark or Elizabeth. But that appears to me to be a matter of little significance in this case. The court is not concerned with the equipment utilized by these parties in the conduct of their places of business. The use of the equipment cannot be of any particular significance in determining the issue in this case. The principal grievance of complainants, if established by the proofs, is the use of the words "Blue Goose" and the use of the word "Super" as applied to the word "Service" in the servicing of automobiles, or the holding out to the public of those names, and particularly the word "Super" as applied to the servicing of automobiles. All of the other matters alluded to by counsel in argument, with respect to the character of equipment, are merely incidental to the conduct of the business by the respective parties. The defendant does not use the particular kind of brake machine used by complainants. Defendant uses an entirely different manufacture of brake machine. There cannot therefore be said to be any simulation by defendant of complainants' equipment in that respect; but there is no complaint herein, as I recall, of simulation of equipment. The principal charge seems to be, as stated by counsel for complainants, unfair trade, and an infringement of a trade-mark or trade-name. I cannot appreciate from the proofs in this case that the complainants have any exclusive right to the use of the words "Blue Goose" or the use of the word "Super" or the word "Service" in connection with their conduct of the business in the servicing of automobiles.
The complainant Levin was very careless in his testimony, in a considerable number of instances. In one breath he testified that a certain happening or incident took place in the month of April, and within a few moments thereafter, in another breath, he testified such happening or incident took place in the month of March, and shortly thereafter he testified he could not recall exactly when it took place. During the course of Levin's examination as a witness I was impelled to admonish him that he was required to tell the truth, the whole truth, and nothing but the truth. I am convinced he did not tell the whole truth; he was conjecturing as to considerable of the matters he was testifying to. Counsel for the complainants experienced much difficulty, clearly observable to the court, and clearly manifest to counsel himself, in his endeavor to obtain from the complainant Levin testimony as to the case which was set up in the bill of complaint, which counsel appreciated he was obliged to elicit proofs of to substantiate the complaint. It was due to no fault of counsel for the complainants that he did not elicit all the proofs he endeavored to elicit; he tried very...
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