First Nat. Bank & Trust Co. of Kalamazoo v. First Nat. Credit Bureau, Inc.

• Decision Date: 30 November 1961
• Docket Number: No. 20,20
• Citation: 111 N.W.2d 880,364 Mich. 521
• Parties: , 131 U.S.P.Q. 487 FIRST NATIONAL BANK AND TRUST COMPANY OF KALAMZOO, a National Banking Corporation, Plaintiff and Appellee, v. FIRST NATIONAL CREDIT BUREAU, INC., a Michigan Corporation, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 880

111 N.W.2d 880

364 Mich. 521, 131 U.S.P.Q. 487

FIRST NATIONAL BANK AND TRUST COMPANY OF KALAMZOO, a National Banking Corporation, Plaintiff and Appellee, v. FIRST NATIONAL CREDIT BUREAU, INC., a Michigan Corporation Defendant and Appellant.

No. 20.

Supreme Court of Michigan.

Nov. 30, 1961.

Stapleton, Adams, Burgie & Kidston, by Roger G. Kidston, Kalamazoo, for plaintiff-appellee.

Avery Weiswasser, Detroit, Russell V. Carlton, Kalamazoo, for defendant and appellant.

Before the Entire Bench.

EDWARDS, Justice.

This is an appeal from an injunction restraining defendant from using the words 'First National' as a part of its name in conducting its credit bureau business in Kalamazoo and vicinity.

Plaintiff, The First National Bank and Trust Company of Kalamazoo, is the largest bank in Kalamazoo, with a main office and 8 branches in Kalamazoo and adjacent counties. It has been in the general banking business in Kalamazoo and vicinity since 1863. Defendant, First National Credit Bureau, Inc., is a collection agency, with home offices in Detroit. It first established a branch office in Kalamazoo in 1959. Defendant functions entirely in the field of collection of small debts. It does not compete at all in the general banking field and has employed the name 'First National Credit Bureau' since 1932, presently operating 23 offices in Michigan and Ohio.

Defendant had located diagonally across from plaintiff when it opened operations in Kalamazoo in 1959. The evidence tended to show that defendant was not exactly scrupulous in making sure the people it did business with were aware they were talking to the credit bureau rather than the bank.

The reality of the problem is illustrated by plaintiff's exhibit 1:

'April 28, 1960

'Mr. Mark Putney, President

'1st National Bank

'Kalamazoo, Michigan

'Dear Mr. Putney:

'I have a good legitimate complaint against tactics used by the manager of your 1st National credit department.

'About one month ago, my wife's aunt and uncle, who have never owed anybody, received a call from this same man who was going to garnishee his wages. After receiving a good deal of abuse and insulting remarks from this uncouth manager they did convince him that he was looking for another man with the same name. It upset them and needless to say they closed out their account at the 1st National Bank.

'Unfortunately, I do not have an account at the 1st National--I would be down when the bank opens in the morning to close it--but I do buy several dollars worth of cashier's checks per month from your drive-in window. I'll be looking for another window.

'Now my personal complaint. I have owed Buck's Wrecker Service 10.00 for several months on a disputed bill which should have been billed to a previous employee of mine. I will acknowledge that I'm stuck with this bill and will pay. Apparently Buck's turned this bill over to your collection department and this morning your collection manager called my wife and lowered the boom. On the 1st call she informed him that I was not home and she would give me the message. On the 2nd call she informed him that she knew nothing about the acct. * * * that she had nothing to do with the account * * * that I was self employed and she did not know where to reach me during the day. He arrogantly informed her that she was a highliving liar * * * informed her that he is used to dealing with bums of our caliber * * * that he would give her one hour to come down with the money * * * that your legal department has obtained an 'Act of Execution' and would be out before 5 P.M. to take everything we had which amounts to approximately 74,000 more than the 10 dollars involved. Needless to say he upset her to no great end and caused her a great deal of mental anguish.

'When I get home I call this so called manager of your credit department and he baits me into using strong language then informs me that our conversations is being recorded and that I'm really in trouble. You can check with this mgr. and transcribe what I had to say to him and put it on paper. I'll be very happy to add my signature to it.

'Very truly yours,

'(s) R. J. Benson'

Eighteen witnesses testified to episodes where somewhat similar confusion between plaintiff and defendant occurred.

The circuit judge, in a lengthy opinion which reviewed the evidence, concluded:

'It is the conclusion of this court that the words 'First National' dominate the names of both plaintiff and defendant. They are the words that attract the eye of the reader. They are the words that by reason of the manner in which the plaintiff has emphasized them over and above the other words in its name, through its many advertising media, over many years, has built in the mind of the average person of this area the image of the plaintiff upon such person seeing the words 'First National.'

* * *

* * *

'It is the conclusion and decision of this court from the record at the trial of this case that actual confusion did and does now exist; that such confusion was and is probable, and will continue to exist in the minds of many people of ordinary intelligence residing in this area for some indefinite period of time in the future; that such confusion arises by the use of the defendant in its corporate name of the words 'First National,' and that, consequently, the use of these words by the defendant in its corporate name is a violation of the provision of the statute set forth above.

'It is also the contention of the plaintiff that the defendant is guilty of unfair competition in the use of the words 'First National' in its corporate name. At the trial the defendant offered no proofs in explanation of its purpose in choosing the words 'First National' as a part of its corporation name. It does not do business nationally, but only in 2 States; it is not a part of a national system or organization; it is not specifically controlled by Federal laws. It is engaged in the filed of finance in that in carrying out its corporate purposes it deals with money and credit.'

Relying primarily on C.L.1948, § 450.6 (Stat.Ann. § 21.6):

'No corporation shall assume any name which is likely to mislead the public, or any name already in use by any other existing corporation of this state, or corporation lawfully carrying on business in this state, or so nearly similar thereto as to lead to confusion or deception.'

he enjoined defendant's use of the words 'First National' in Kalamazoo and adjacent counties.

...