Cain's Lobster House, Inc. v. Cain

• Decision Date: 02 December 1942
• Citation: 45 N.E.2d 397,312 Mass. 512
• Parties: CAIN'S LOBSTER HOUSE, Inc., v. CAIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

312 Mass. 512

45 N.E.2d 397

CAIN'S LOBSTER HOUSE, Inc.,

v.CAIN.

Supreme Judicial Court of Massachusetts, Norfolk.

Dec. 2, 1942.

Suit in equity by Cain's Lobster House, Inc., against Merle V. Cain to enjoin defendant from using the name ‘Cain's' in a manner calculated to mislead or deceive the public in the business of selling sea food and from conducing a retail sea food store in the town of Weymouth. Decree for plaintiff, and defendant appeals.

Reversed, and entry of new decree for plaintiff directed.Appeal from Superior Court, Norfolk County; Baker, Judge.

Before FIELD, C. J., and DONAHUE, QUA, COX, and RONAN, JJ.

J. H. Brennan, of Boston, for plaintiff.

R. F. Barrett and W. J. Holbrook, both of Boston, for defendant.

RONAN, Justice.

The plaintiff, since its incorporation in 1930, has been engaged each year during the regular seasons, which began in the late spring and continued until the late fall, in conducting a restaurant upon certain premises located in Weymouth, where lobster, crab meat and other sea foods were the principal articles served to the public. It has also maintained a retail store for the sale of such articles. It has for years sold alcoholic beverages in accordance with a license granted to it. The defendant, a lobsterman, whose home was located ten or fifteen feet away from the corporation's premises, had been for many years associated with the plaintiff. Early in 1940 a mortgage on the real estate, which was occupied by the corporation and stood in the name of the defendant's mother, was foreclosed by a bank. One Wells desired to purchase the business of the corporation and to secure the license for the sale of liquor which the licensing authority was willing to issue to the plaintiff. In order to secure a renewal of the license he deemed it expedient to continue the plaintiff corporation. He purchased the real estate from the bank and acquired all the outstanding stock of the corporation including that held by the defendant. The latter's mother gave a discharge of a chattel mortgage which she held on the property of the corporation. Wells agreed to pay the indebtedness of the plaintiff up to a certain amount. The defendant agreed that he would not engage in the business of selling lobster and crab meat at retail. The plaintiff has expended several thousand dollars in improving its premises and has done a large business. In June, 1940, the defendant fitted up the front of his house as a store for the retail sale of lobster and crab meat, and sandwiches made therefrom, and has since kept said store open during the regular seasons for such places. The defendant does not conduct a restaurant and articles he sells are not eaten on the premises. In connection with said store he has maintained an illuminated sign reading ‘M. V. Cain, Lobster and Crabmeat,’ ‘Sandwiches,’ ‘Native Crabmeat.’ The judge found that the defendant's sign and the proximity of his place of business to that of the plaintiff cause confusion to the public desiring to buy such food stuffs and that his customers have frequently asked him if he was conducting both places; that the plaintiff has for years maintained on the front of its building a large electrically illuminated sign containing the word ‘Cain's'; and that the plaintiff has become known to the public as ‘Cain's.’ The defendant has appealed from a final decree in which it is recited that the name ‘Cain's Lobster House, Inc.’ and ‘Cain's' have acquired a secondary meaning in a certain territory, therein described, as indicating the business conducted by the plaintiff, and which enjoins the defendant from using the name ‘Cain’ in any manner calculated to mislead or deceive the public ‘in the business of selling sea food’ and restraining him from carrying on a retail store for the sale of food, sea food, lobsters or crab meat in the town of Weymouth.

The defendant has been engaged for many years as a fisherman, having the necessary equipment and a wharf located in the rear of his home. His catches in the main consisted of lobsters and crabs and these he has sold either at wholesale or at retail to the public. He had a right to pursue that occupation and to conduct the business in his own name, Gilman v. Hunnewell, 122 Mass. 139;Russia Cement Co. v. Le Page, 147 Mass. 206, 17 N.E. 304,9 Am.St.Rep. 685;Burns v. William J. Burns International Detective Agency, Inc., 235 Mass. 553, 127 N.E. 334, provided that the methods employed, including the manner in which his name was used, did not result in actual or probable deception of the public by inducing or reasonably tending to induct a belief that in dealing with him they were dealing with the plaintiff. In answer to a contention that the court will not interfere with the use of a man's name when the only confusion results from the similarity of his name to that of one with whom he has set up a competing business, it was said by Holmes, J. in L. E. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 94, 35 S.Ct. 91, 92, 59 L.Ed. 142, that ‘whatever generality of expression there may have been in the earlier cases, it now is established that when the use of his own name upon his goods by a later competitor will and does lead the public to understand that those goods are the product of a concern already established and well known under that name, and when the profit of the confusion is known to and, if that be material, is intended by, the later man, the law will require him to take reasonable precautions to prevent the mistake. * * * There is no distinction between corporations and natural persons in the principle, which is to prevent a fraud.’ If the natural and probable consequences...