Buckspan v. Hudson's Bay Co.

• Decision Date: 22 December 1927
• Docket Number: No. 5139.,5139.
• Parties: BUCKSPAN v. HUDSON'S BAY CO.
• Court: U.S. Court of Appeals — Fifth Circuit

22 F.2d 721 (1927)

BUCKSPAN v. HUDSON'S BAY CO.

No. 5139.

Circuit Court of Appeals, Fifth Circuit.

November 30, 1927.

Rehearing Denied December 22, 1927.

W. M. Taylor, of Dallas, Tex. (Wallace & Taylor and W. L. Crawford, Jr., all of Dallas, Tex., on the brief), for appellant.

R. E. L. Saner and W. H. Jack, Jr., both of Dallas, Tex., and Harold S. Mackaye, of New York City, for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This is an appeal from a decree enjoining and restraining the appellant, Abraham Buckspan, his associates, agents, etc., from, in any way or manner, by shop signs, stationery, or advertising, conducting business under the name of the "Hudson Bay Fur Company," or the "Hudson Bay Fur Company of Texas, Independent," or any similar name calculated to deceive the public, and to create the impression that the appellant is in any manner identified or affiliated with the appellee. That decree was rendered in a suit in equity brought by the appellee against the appellant in October, 1926. As to the material facts the evidence, consisting of an agreed statement of facts and testimony of witnesses accompanied by exhibits referred to, was without substantial conflict. It disclosed the following:

The appellee, "the Governor and Company of Adventurers of England trading into Hudson's Bay," has been in existence since 1670 under a royal charter granted by the British King Charles II, and is commonly known and designated as the "Hudson's Bay Company." The agreed statement of facts contains the following:

"That plaintiff under the name of `The Hudson's Bay Company,' during more than two centuries has been and is at present generally known, especially in Great Britain, Canada, the United States, and other English-speaking countries, as the greatest fur producing and trading establishment in the world. That plaintiff, operating under its said name, has acquired a reputation for reliable dealings, and is now possessed of a valuable good will commensurate with its recognized reputation for business integrity. That plaintiff has a general reputation and is known generally in the United States as a great trading company, trading in, among other goods, wares, and merchandise, raw furs.

"That plaintiff conducts periodical fur sales in London, England, which are attended by buyers from the United States, who purchase raw furs from plaintiff to the amount of many thousands of dollars per annum. That said furs so purchased are imported by said buyers into the United States, where same are manufactured into finished fur products, which are sold through the channels of trade by merchants and dealers not connected with plaintiff, to the public generally, in the United States and the large cities thereof, including Dallas, Tex.

"That plaintiff on, to wit, the 6th day of April, A. D. 1925, caused to be organized a corporation under the laws of the state of New York to do business as a subsidiary of plaintiff under the name of `the Hudson's Bay Company' and plaintiff is preparing to do business in the United States through said subsidiary corporation. That plaintiff has not any place of business in the state of New York or in the United States in which it is now selling or has sold, either directly or through any subsidiary, any goods, wares, or merchandise in the United States.

"That notices and advertisements of plaintiff's periodical fur sales, which take place in London, England, appear in the `Fur Trade Review,' a magazine published in New York City. That said magazine, containing said notices, is currently received in Dallas, Tex., by dealers in manufactured furs.

"That blankets and tobaccos produced by the plaintiff, and labeled and known as products of plaintiff, the Hudson's Bay Company, are sold in the United States under plaintiff's own trade-mark. That tobaccos designated, known, and advertised as products of the plaintiff, are sold in Dallas, Tex., by retail mercantile stores, and have been sold in Dallas for many years. That the attached is a true copy of the advertising folder which is publicly distributed in Dallas.

"That the defendant, Abraham Buckspan, engaged in the mercantile business in the city of Dallas, Tex., at 1314 Elm street, in January, 1916, at which place he has subsequently been continuously engaged in the mercantile business at said location. That a substantial number of persons in Dallas, Tex., the exact, or approximate number of which is unknown, have purchased manufactured furs, and fur garments from defendant at his place of business in Dallas, Tex., under the impression and belief that they were making such purchases from plaintiff, or from a branch or subsidiary of plaintiff. That said persons, not knowing that there was no connection between plaintiff and defendant, and not knowing the exact nature of the business of each, received such impression wholly from the similarity between the respective names of plaintiff and defendant.

"That neither at the time defendant, Abraham Buckspan, in 1916, began the operation of his store in Dallas, Tex., under the name of `Hudson Bay Fur Company' nor at any time subsequent thereto, has defendant's business in fact been a branch or subsidiary concern of plaintiff. * * *

"That plaintiff...