First Federal Savings & Loan Ass'n v. First Finance & Thrift Corporation

• Decision Date: 12 March 1951
• Docket Number: No. 17388,17388
• Citation: 64 S.E.2d 58,207 Ga. 695
• Parties: FIRST FEDERAL SAVINGS & LOAN ASS'N v. FIRST FINANCE & THRIFT CORP.
• Court: Georgia Supreme Court

Page 58

64 S.E.2d 58

207 Ga. 695

FIRST FEDERAL SAVINGS & LOAN ASS'N v.FIRST FINANCE & THRIFT CORP.

No. 17388.

Supreme Court of Georgia.

March 12, 1951.

Syllabus by the Court.

Under the facts alleged in the petition, the name 'First Finance and Thrift Corporation' is not such a colorable imitation of the name 'First Federal Savings and Loan Association' as to lead the public, exercising ordinary care, to believe that it refers to the same company, thus causing unfair competition.The petition failing to state a cause of action for equitable relief, it was not error to sustain the general demurrers and dismiss the action.

Herbert Johnson, Henry M. Hatcher, Jr., and William L. Moore, all of Atlanta, for plaintiff in error.

Fine & Efurd, Robert T. Efurd and Noah J. Stone, all of Atlanta, for defendant in error.

ALMAND, Justice.

The exception here is to a judgment dismissing on general demurrer the petition of First Federal Savings and Loan Association against First Finance and Thrift Corporation, wherein the plaintiff sought to enjoin the defendant from using any part of its corporate name, and from using the words 'First' or 'First Finance' in its business.

In substance, it is alleged: In 1924the plaintiff was organized as First Mutual Savings Association, and in 1934 it converted from a State charter to a Federal charter, and took its present name.It has conducted its business at 46 Pryor Street, N. E., in Atlanta for over 25 years, and in the course of its advertising program for 16 years has used such slogans as 'See Federal First,' and has used consistently and extensively the words 'First' and 'First Federal,' and the use of the name 'First Federal,' and 'First Federal Loan' have been so extensive as now to be identified by the public as being the business of the plaintiff.The defendant, on or about July 5, 1950, opened a place of business for the purpose of making loans, at 8 Pryor Street, N. W., in Atlanta, and advertised in newspapers such phrases as 'First Finance & Thrift offers a complete loan service,' and 'Investigate First's Honor Plan,' and using the words 'First' and 'First Finance' or 'Finance & Thrift Corp.,' in identifying itself.The defendant, in selecting the words 'First' and 'First Finance,' did so for a fraudulent and illegal purpose, so as to capitalize upon the valuable reputation of the plaintiff, and confusion has resulted, in that letters and other mail intended for the defendant are addressed to the plaintiff, and the plaintiff receives telephone calls and personal inquires of members of the public inquiring about small loans.

It is alleged in paragraph 17 as follows: 'As a result of the adoption of the name 'First Finance & Thrift Corp.,' or as it is more generally known, 'First Finance,' your petitioner is being deprived of the benefit of the reputation acquired by its high character and popularity among the public and throughout the community, and the defendant is misleading the public.Such deceptive conduct is unfair competition and is a fraud upon the public and upon your petitioner, destroying the good will established by petitioner and causing irreparable damages.'

There are no allegations as to when the defendant was incorporated or granted the use of its name, nor any allegations as to the nature or character of the defendant's business other than that it is the loan business.From the name of the plaintiff, we assume it to be a building and loan association, Ga.L.1937-38, Ex.Sess.pp. 307, 314, but there is nothing alleged in the petition that the defendant is in a like business.

The basis upon which the plaintiff would be entitled to equitable relief is: Having first acquired the use of the word 'First' as a part of its corporate name, a colorable imitation of the same by the defendant in such a manner that the general public, in the exercise of ordinary care, might think it the name of the plaintiff, constitutes an infringement of the plaintiff's right and a fraud on its use of its corporate name, where the defendant, by the use of a similar name, intends to create an impression in the minds of the public that its name and that of the plaintiff, which first...