Carson v. Harris
Decision Date | 05 September 1951 |
Docket Number | No. 12276,12276 |
Citation | 242 S.W.2d 777 |
Parties | CARSON et al. v. HARRIS. |
Court | Texas Court of Appeals |
Elmer Ware Stahl, A. R. Sohn, San Antonio, for appellants.
Chas. F. Guenther, Jr., W. Pat Camp, San Antonio, for appellee.
This is an appeal from a permanent injunction forbidding appellants' use of a name and certain advertisements in connection with the operation of their restaurant business claimed to be operated in unfair competition toward appellee. The case was tried to the court without a jury.
From 1911 to 1940, Mr. and Mrs. W. W. Wolfe owned and operated a restaurant about three miles from the north city limits of San Antonio. Their place of business was located on the north side of a main traffic artery leading into the city and was surrounded with beautiful and scenic grounds. Mr. and Mrs. Wolfe operated the business under their own name, 'W. W. Wolfe's Inn,' and were highly successful and developed a fine reputation for their superior service and food. Mr. Wolfe died in 1940, and thereafter Mrs. Wolfe continued on with the business for an undisclosed period of time. Sometime during 1945 she sold the restaurant to a Mr. Jackson, but no mention was made of the name or good will. The terms of that transaction do not appear, except that Mrs. Wolfe did receive a note for $16,000 secured by the restaurant property and real estate. Anton Greive in turn bought the same property from Jackson, but before he bought it he made a trip to Leakey, Texas, to see Mrs. Wolfe about the use of the name and he insisted that the name should also go with the purchase. At that time Mrs. Wolfe still held Mr. Jackson's note. She protested a transfer of the name, but finally, on August 9, 1945, complied with Mr. Greive's request to the extent of executing an instrument as follows: 'That I, Estelle Wolfe, a widow, of San Antonio, Bexar County, Texas, having heretofore owned and operated a restaurant on the Fredericksburg Road, north-west of the City of San Antonio, Bexar County, Texas, which was generally known as the W. W. Wolfe's Inn, and being the sole owner of the same, for a valuable consideration to me in hand paid by A. S. Greive of Bexar County, Texas, the receipt of which is hereby fully acknowledged, have granted, sold and conveyed and do by these presents grant, sell and convey unto the said A. S. Greive, his heirs and assigns, the sole and exclusive right to the use of the following name, to-wit: Wolfe's Inn.'
That document recited a valuable consideration and a sale of the name 'Wolfe's Inn,' but omitted the initials, As a part of the sale of the premises, Mrs. Wolfe surrendered the note she held against Jackson and substituted in its place a note from Greive to whom she conveyed the name. Greive continued thereafter to operate the same business at the same place under the name, 'W. W. Wolfe's Inn.' He then changed it to 'Wolfe's Inn' after the bulbs or tubes which illuminated the initials burned out. He also operated under the name of 'Wolf's Inn.' In April, 1950, Greive sold the business to appellee, Harris, and the sale included a transfer of the name 'Wolf's Inn,' and he has used both the name 'Wolfe's' and 'Wolf's' in the business. There was evidence before the court relating to the use of both names and, though disputed, appellee testified that Greive represented to him that he had the right to use the name, 'W. W. Wolfe's Inn.' He registered the name in the assumed name register as 'Wolf's Inn.'
Appellant Estelle A. Carson is the former Mrs. W. W. Wolfe, but she married K. F. Carson in 1946. After selling her property, she moved to Leakey, Texas, where she lived for an undisclosed period of time. On October 19, 1950, she went back into the restaurant business in San Antonio, Texas, at a place on the same side of the same street, about four and a half or five miles from her original place of business. She opened under the name of 'W. W. Wolfe's Inn' and had a sign saying: 'Mama Wolfe has come home.' Her new place of business was advertised by the likeness of a wolf and promoted the slogan: 'A Nice Place for Nice People.' Still another sign read: 'Wolfe's Inn.' Other advertisements followed these patterns. Both before and after the sale of the restaurant in 1945, the symbol of the wolf and the slogan were in use as advertising media for the original business at the original location. Appellee, Harris, testified about his loss of business and the confusion among his customers.
Appellee, Harris, in the trial court obtained a permanent injunction against Mrs. Carson's use of the names 'W. W. Wolfe's Inn, W. W. Wolf's Inn, Wolfe's Inn, or Wolf's Inn, or any other variation thereof or similar name, and the use of the names Wolfe or Wolf as a slogan or advertisement or as any part thereof or the use of any sign, emblem, or reproduction thereof using the form of the animal wolf or any part of such animal and the use of any similar name or the use of any variation of such names or the form of or any part of said animal' in connection with the restaurant business in Bexar County. Except for some findings in the judgment itself, no findings of fact and conclusions of law were filed. All issues which are supported by the evidence are presumed to have been found in support of the judgment. State v. Balli, Tex.Civ.App., 173 S.W.2d 522, Id., 144 Tex. 195, 190 S.W.2d 71; Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706; Clark v. Goldberg, Tex.Civ.App., 3 S.W.2d 920.
As a general rule, one has a sacred right to the honest use of his own name, and this is true even though such use may be detrimental to other persons with the same name. Goidl v. Advance Neckwear Co., 132 Tex. 308, 123 S.W.2d 865; Edelstein v. Edelstein, Tex.Civ.App., 6 S.W.2d 400; Howe Scale Co. of 1886 v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972; Rogers v. Rogers, 53 Conn. 121, 1 A. 807, 5 A. 675; Ida May Co. v. Ensign, 20 Cal.App.2d 339, 66 P2d 727; Brooks v. Heartfield, Tex.Civ.App., 2 S.W.2d 510, 512; W. F. & John Barnes Co. v. Vandyck Churchill Co., D.C., 207 F. 855, Id., 2 Cir., 213 F. 637; Gates v. Gates Coal Co., 114 Pa.Super. 157, 174 A. 3. One who is junior in time may enter a business in competition with another of the same name, but he is under a duty to take precautions to avoid confusion. L. E. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 94, 35 S.Ct. 91, 59 L.Ed. 142. But the right to use one's name may be voluntarily transferred or the subject of an estoppel or a self-imposed restraint of user and in such instances one may be deprived of the right to exploit his name in the future. Goidl v. Advance Neckwear Co., supra; Brooks v. Heartfield, Tex.Civ.App., 2 S.W.2d 510; Ajax Tool Co. v. Buchalter Tool Co., 125 Misc. 752, 211 N.Y.S. 241; 24 Am.Jur., Good Will, § 16; Annotated: 66 A.L.R. 999.
Da Pron v. Russell, 87 Colo. 394, 288 P. 178; 2 Callmann, Unfair Competition and Trade Marks, p. 1090.
The facts show that Mrs. Wolfe in her sale to Jackson did not obligate herself to forego reentry into the restaurant business, and no effort is made in these proceedings to enjoin Mrs. Carson from engaging in the restaurant business where she is presently located or elsewhere. This case concerns only the right to the use of a name and certain advertising techniques. The express contract with Mr. Greive made on August 9, 1945, for a recited consideration, altered appellant's right to the use of her name. That contract was delivered when Mrs. Carson contemporaneously substituted Greive as the debtor on the $16,000 note secured by the original Wolfe restaurant property. The name was not transferred in gross but in connection with the business and for a consideration.
We think appellant had the right to part with her name by transfer and that her right thereafter to use that name in a competitive business stood on an entirely different footing from her natural rights before the transfer. The authorities discussing the right to use one's own name, wherein the facts do not disclose a transfer, are not in point. Once she voluntarily divested herself of her natural right to use her own name, entirely new rights and duties came into being. Her rights thereafter were controlled by the rules ordinarily obtaining between two persons, neither of whom could claim the natural right to use of his own name. Appellee, Harris, could not claim the natural right because it was not his name; appellant Estelle A. Carson could not claim the natural right because she had parted with her right by a valid transfer. The principle invoked in such a situation is simply whether or not Mrs. Carson, after her transfer, has selected a name sufficiently similar to provoke competitive confusion and deception to the general public. The most difficult problem in connection with the case is whether appellant in conveying the name 'Wolfe's Inn,' also is prohibited from operating as 'W. W. Wolfe's Inn.' We think she is.
Appellant has selected a name that is confusingly similar in appearance, sound and meaning, to the eye, the ear and the imagination. We think the trial court was justified in its presumed finding that such was the intended result, especially when additional facts show that she also selected a symbol of a wolf as her business motif, and out of the endless number of possible mottoes, she centers upon the identical one already in use at appellee...
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