First Nat. Stores, Inc. v. First Nat. Liquor Co.

• Decision Date: 26 June 1944
• Parties: FIRST NAT. STORES, Inc., v. FIRST NAT. LIQUOR CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 538

55 N.E.2d 940

FIRST NAT. STORES, Inc.,

v.FIRST NAT. LIQUOR CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1944.

Suit by First National Stores, Inc., against First National Liquor Company brought under the provisions of G. L.(Ter.Ed.) c. 155, § 9, providing that a corporation organized under general laws should not assume name of another corporation previously established under the laws of the Commonwealth, or a name so similar thereto as to be likely to be mistaken for it, wherein the defendant filed a demurrer to the bill. From an interlocutory decree overruling the demurrer, and from the final decree, the defendant appeals.

Appeal from interlocutory decree dismissed and final decree reversed and bill dismissed.Appeal from Superior Court, Middlesex County; Dillon, Judge.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, RONAN, WILKINS, and SPALDING, JJ.

A. L. Hyland, of Boston, and J. D. Hanify, of Belmont, for plaintiff.

V. T. Hennessy, of Boston, for defendant.

QUA, Justice.

The first paragraph of the bill alleges that this proceeding is brought under the provisions of G.L.(Ter.Ed.) c. 155, § 9. That section (since amended in respects not now material by St.1943, c. 295) provided in part that a corporation organized under general laws should not assume the name of another corporation previously established under the laws of the Commonwealth, or of a corporation carrying on business in the Commonwealth, or ‘a name so similar thereto as to be likely to be mistaken for it,’ except with the written consent of the existing corporation. The statute conferred jurisdiction upon the Supreme Judicial Court and the Superior Court to enjoin the new corporation from doing business under a name assumed in violation of the section, even though a certificate of incorporation had been issued to it. After the incorporation of the plaintiff as ‘First National Stores Inc.’ the defendant, which was originally incorporated as ‘San Clemente Company,’ assumed, with the approval of the commissioner of corporations and taxation, the name ‘First National Liquor Company.’

We accept the statement of the plaintiff both in the bill and in its brief that this proceeding is under the statute, although some allegations of the bill and some of the evidence might be thought to extend slightly beyond the limits of a proceeding solely under the statute. Compare Staples Coal Co. v. City Fuel Co., Mass., 55 N.E.2d 934. Under the statute the question to be decided is whether the name ‘First National Liquor Company’ is so similar to the name ‘First National Stores Inc.’ as to be likely to be mistaken for it by ‘a person of average intelligence.’ John L. Whiting-J. J. Adams Co. v. Adams-White Brush Co., 260 Mass. 137, 141, 156 N.E. 880, 881;National Shoe Corp. v. National Shoe Mfg. Co., Inc., 302 Mass. 449, 451, 19 N.E.2d 734.

Evidence received at the hearing added but little to that supplied by a mere comparison of the two names. It appeared that the defendant had a store on Hanover Street in Boston, and that it sold liquors and no foods; and that the plaintiff maintained one of its eighteen hundred fifty stores on Salem Street about a block from the defendant's store and sold no liquors in this Commonwealth.¹ It seems to have been assumed at the hearing that the plaintiff dealt in foods, an assumption in which we think we are justified in joining. So far as appears the only article sold in both the plaintiff's Salem Street store and the defendant's store was ginger ale, and it did not appear that there was competition between the stores. There was evidence of similarity in some respects and of difference in other respects between the signs upon the two stores bearing their respective owners' names, but this relates to the manner of dressing the store fronts and not to the similarity of the names themselves. In its aspect most favorable to the plaintiff the case turns upon the degree of similarity of the two names as applied respectively to a retail food business and to a retail liquor business in the same area, but not in competition with each other, and upon the likelihood of the name of the owner of the liquor business being mistaken for the name of the owner of the food business.

The trial judge decided the question of fact in favor of the plaintiff. Nothing turns, however, upon conflicting testimony or upon the credit to be given to opposing witnesses. We are in as good a position to decide the issue as was the trial judge. Newburyport Soc. for Relief of Aged Women v. Noyes, 287 Mass. 530, 532, 533, 192 N.E. 54;Veazie v. Staples, 309 Mass. 123, 127, 33 N.E.2d 262.

The only similarity between the two names is found in the identity of the first two out of the four words respectively comprising each name. The last two words are wholly different. The words ‘First National’ belong to a well known type of rather grandiloquent and often presumptuous epithets frequently used at the beginning of corporate and business names. Other words of the same type coming readily to mind are ‘International,’ ‘American,’ ‘Federal,’ ‘Metropolitan,’ ‘Capital,’ ‘County,’ ‘City,’ and so forth.² Place names such as ‘Boston’ or ‘Connecticut Valley’ are similarly used. We do not believe that these epithets are taken very seriously by the public. It is generally understood that the same expression is employed, often with little justification, by many persons and corporations, and that its use in different places and especially in different lines of business does not indicate identity of proprietorship. For example, few people of intelligence would be likely to mistake the name ‘Boston Liquor Company’ for the name ‘Boston Stores Inc.’ We are not convinced that it is otherwise when the common epithet is ‘National’ or ‘First National.’ Moreover, the word ‘Liquor’ in the name of the defendant points to a special kind of business in which the plaintiff was not here engaged, and the word ‘Stores' in the name of the plaintiff suggests a group of stores, which the defendant did not have. If material in a proceeding of this kind, there is nothing to show that the words ‘First National’ had acquired in the liquor business a secondary meaning designating the plaintiff. It does not...