Danton v. Mohler Barber School

• Court: Oregon Supreme Court
• Writing for the Court: BURNETT, J.
• Citation: Danton v. Mohler Barber School, 88 Or. 164, 170 P. 288 (Or. 1918)
• Decision Date: 26 March 1918
• Parties: DANTON ET AL. v. MOHLER BARBER SCHOOL.

170 P. 288

88 Or. 164

DANTON ET AL. v. MOHLER BARBER SCHOOL.

Supreme Court of Oregon

March 26, 1918

Department 1.

Appeal from Circuit Court, Multnomah County; C. U. Gantenbein Judge.

Suit by R. C. Danton and another, partners doing business under the firm name and style of the Moler Barber College, against the Mohler Barber School, a corporation. From an adverse decree plaintiffs appeal. Reversed and remanded.

The circuit court sustained a general demurrer to the plaintiffs' complaint, and, as they refused to plead further, made an order dismissing the suit, from which they have appealed.

Chester G. Murphy, of Portland (Ralph Robinson, of Spokane, Wash., on the brief), for appellants. Morris A. Goldstein and F. S Senn, both of Portland, for respondent.

BURNETT J.

The two plaintiffs allege in substance that for ten years prior to the filing of the complaint they have been conducting a barber school and college in Portland, as partners, for the instruction of persons desiring to learn the barber trade that they carried on such business under the firm name and style of "Moler Barber College," and that they registered the same as required by chapter 154 of the Laws of 1913. They say that this name is well known throughout Oregon, the United States, and Canada, as applied to barber colleges, that they purchased from one A. B. Moler of Chicago the right to use it in this state in the conduct of their business, and that it is valuable to them on account of these facts. They further assert that since February 23, 1916, the defendant has been and is now a corporation organized for the purpose of teaching persons the business or profession of a barber in Portland in competition with the plaintiffs. In substance, they charge that the defendant was formed by its promoters with the fraudulent purpose and intent of deceiving the public and undermining plaintiffs' business by means of commercial piracy and fraud, and in pursuance thereof has located its place of business within half a block of the plaintiffs' establishment and by so doing has grievously injured the good will and trade of the plaintiffs and secured for itself many customers and students who otherwise would have patronized the plaintiffs. They claim to have been damaged by the action of the defendant, and pray for an injunction prohibiting it from using the name "Mohler" as applied to the business of barbering or barber college, that it be compelled to account to the plaintiffs for all profits made by it and all money it has received in the use of said name "Mohler" as applied to a barber school or college, and for further relief.

The principle applicable to cases of this kind is thus stated in Columbia Engineering Works v. Mallory, 75 Or. 542, 546, 147 P. 542, 544:

"The defendant, who is a subsequent manufacturer, cannot palm off his goods as those of his rival, the plaintiff, and escape the restraining hand of equity. It is not necessary to show by specific instances that purchasers have actually been deceived; but a court of conscience is justified in stamping the brand of commercial piracy upon the wares of defendant if he puts them upon the market in such form and manner as to deceive the purchasing public into the belief that such wares were made by plaintiff."

The same doctrine is taught in Wood v. Wood, 78 Or. 181 151...