Food Centers, Inc. v. Davis

• Decision Date: 07 January 1971
• Docket Number: 6 Div. 782
• Citation: Food Centers, Inc. v. Davis, 244 So.2d 576, 286 Ala. 629 (Ala. 1971)
• Parties: , 168 U.S.P.Q. 734 FOOD CENTERS, INC., a Corporation, v. Cecil DAVIS, d/b/a Cecil Davis Grocery Company, et al.
• Court: Alabama Supreme Court

Page 576

244 So.2d 576

286 Ala. 629, 168 U.S.P.Q. 734

FOOD CENTERS, INC., a Corporation, v. Cecil DAVIS, d/b/a Cecil Davis Grocery Company, et al.

6 Div. 782.

Supreme Court of Alabama.

Jan. 7, 1971.

Rehearing Denied Feb. 25, 1971.

James H. Faulkner, Birmingham, for appellant.

Frank Parker and Roberts & Davidson, Tuscaloosa, for appellees.

MERRILL, Justice.

This is an appeal from a decree which denied the injunctive relief sought by the appellant against the appellees for the latter's use of a trade name, 'Food Center' or 'Food Centers,' as part of the name of the appellees' retail grocery stores, 'Home Food Center.'

The complaint alleged that the appellees, 'by the use of the sign and words 'HOME FOOD CENTER" infringed upon the appellant's registered Trade Marks, 'FOOD CENTER' and 'FOOD CENTERS.' The complaint also averred that some people, as a result of the appellees' use of those words, were misled, misinformed and confused, in other words, that the public was actually deceived into the belief that these stores were the same as those operated by the appellant. The complaint averred that the people of Tuscaloosa County were likely to be misinformed, misled and confused to the detriment of the appellant's business.

Testimony was taken ore tenus. The evidence showed that an association had obtained a registration in June, 1951, with the Secretary of State of the names 'Food Center' and 'Food Centers.' That association incorporated in November, 1951, and is the appellant here. The appellant does not have any member stores in Tuscaloosa County, but does have 32 member stores operating in Shelby, Jefferson, St. Clair and Chilton Counties. The appellant has made solicitations for new members in Tuscaloosa County and advertised in two Birmingham newspapers, which were circulated in Tuscaloosa, and their advertising was also transmitted over two Birmingham TV stations. The respondents advertised in the Tuscaloosa News under the name of 'Home Food Center.' There was no evidence as to when the respondents were organized and began using the name 'Home Food Center,' but the appellant first became aware of the appellees' use of that name in October, 1967. Advertisements of both organizations were introduced for comparison. The appellees' symbol was a roof design over the word 'Home' under which was written 'Food Center' in letters about one-third as high as 'Home.' The appellant's symbol is a solid circle with the words 'Food Center' written inside.

The trial judge denied the injunction because it was not shown 'that any person had been actually deceived by the use of the trade name, Home Food Center, by the respondents, and furthermore the evidence was not such as to reasonably satisfy the court that the use of the trade name, Home Food Center by the people of the Tuscaloosa area is calculated to deceive the public into the belief that the affairs of the respondents are those of the complainant or that the people of this area are likely to be misinformed, mislead, or confused by the use of such trade name of the respondents.'

Assignments of error 1 and 2 are based on the two reasons given by the trial court for reaching the conclusion that an injunction should not be granted.

If a decree correctly determines the equities of the case, the reasons upon which the trial court proceeded are unimportant and the case will be affirmed. Cherokee County v. Cunningham, 260 Ala. 1, 68 So.2d 507; Andrews v. Sullivan, 260 Ala. 291, 69 So.2d 870.

A correct decision will not be disturbed because the court gave a wrong or insufficient reason therefor. Cherokee County v. Cunningham, supra; Lambert v. Alabama Farm Bureau Mut. Cas. Ins. Co., 281 Ala. 196, 200 So.2d 656.

We think the trial court reached the correct result but we do not agree that the first reason given by the court was sufficient, by itself, to deny the injunction. We agree with appellant that Fuqua v. Roberts, 269 Ala. 59, 110 So.2d 886, holds that in a suit of this kind, 'It is not necessary to show in a bill for injunctive relief only that any person or persons have been actually deceived.' Appellees argue that proof of actual deception, of which there was none, is required to prevent a fatal variance between the allegation and the proof. We disagree.

In a suit for injunction in Bobo v. City of Florence, 260 Ala. 239, 69 So.2d 463, we stated it is 'well settled that in equity it is not necessary to accurately prove every detail of averment as alleged provided that proof is made of such averments as are essential to the relief sought.' Cited in support is...