Fuqua v. Roberts
| Decision Date | 09 April 1959 |
| Docket Number | 6 Div. 134 |
| Parties | D. B. FUQUA v. Woodrow ROBERTS. |
| Court | Alabama Supreme Court |
Earl Alford, Winfield, for appellant.
Fite & Fite, Hamilton, for appellee.
This is an appeal from a decree of the Circuit Court of Fayette County, Alabama, in Equity, sustaining a demurrer to the amended bill of complaint. This appeal is here by virtue of § 755, Title 7, Code of Alabama 1940.
The bill, in substance, alleges that the complainant is conducting an automobile sales business at Birmingham under the name and style of City Car Market, and has been conducting such business for five or more years. He further alleges that the respondent is now conducting a similar automobile sales business in Fayette, Alabama, under the name and style of The City Car Market, and that such a business was commenced in the year 1955. Paragraph 4 of the amended bill is as follows:
'Complainant avers that a number of people, the exact number being unknown to complainant, as a natural and probable result from the defendant's use of such name, have been misinformed and misled and confused by defendant's acts to the extent that they think or, that they are doing business with complainant; that the businesses of complainant and defendant are one and the same business under one ownership and with the same reputation for quality of product and service; or that, they, the people of Fayette County and West Alabama are likely to be so misinformed, misled and confused by the use of the complainant's business name by the defendant; that the defendant is being unjustly enriched by selling cars to customers who have been enticed to his premises fraudulently by the fraudulent use of the complainant's name by the defendant in order to take advantage of the complainant's extensive newspaper, radio and television advertising, so as to reap what he has not sown; that defendant is infringing upon complainant's trade name and his acts and practices will result in irreparable injury to complainant's automobile sales in the fnture and constitutes unfair competition.'
There is a prayer to enjoin the respondent from using the name 'The City Car Market' and for general relief.
'It is a cardinal rule of equity pleading that a bill should show with certainty and clearness that the complainant has a right that warrants protection, and the respondent must be distinctly informed of the nature of the case which he is called upon to defend; otherwise it is subject to demurrer.' Montgomery v. Drinkard Auto & Truck Co., 257 Ala. 685, 60 So.2d 823, 825. But 'the same precision of statement is not generally required in equity as at law, and the certainty with which averments must be made will depend on the particular case.' Martin Stamping & Stove Co. v. Manley, 260 Ala. 112, 69 So.2d 671, 681.
Courts of equity have liberally exercised their injunctive powers to prevent injury from the infringement of trade names wherever it appeared the name was established, distinctive and a valuable adjunct to a place of business. All that is necessary is to inform the court that the complainant's trade is in danger of harm from the use of its name by the respondent in such a manner as it is likely to deceive the public into the belief that the respondent's affairs, in the respect complained of, are those of the complainant. Try-Me Bottling Co. v. Teaver, 241 Ala. 266, 2 So.2d 611; N. L. Pierce Nat. Detective Agency v. Pierce Detective Agency, 217 Ala. 594, 117 So. 191.
It is not necessary to show in a bill for injunctive relief only that any person or persons have been actually deceived. McVay & Son Seed Co. v. McVay Seed & Floral Co., 201 Ala. 644, 79 So. 116; Boston Shoe Shop v. McBroom Shoe Shop, 196 Ala. 262, 72 So. 102.
Appellant admits in brief that the businesses of complainant and respondent are approximately 100 miles apart.
Undoubtedly, the question of competition will arise upon trial, but complainant alleges that he has extensively advertised in Fayette County and has sold and expects to sell automobiles to the people of Fayette County. The fact that Birmingham, Alabama, and Fayette, Alabama, are different communities approximately 100 miles apart is not of controlling significance. Ball v. Best, C.C., 135 F. 434; Hub Clothing Co. of Wilkes-Barre v. Cohen, 270 Pa. 487, 113 A. 677.
In N. L. Pierce Nat. Detective Agency v. Pierce Detective Agency, supra [217 Ala. 594, 117 So. 191], this court said:
And the court also said:
This court stated in Boston Shoe Shop v. McBroom Shoe Shop, 196 Ala. 262, 72 So. 102, 103:
'On the principle that the 'good will' of a business is a valuable property right, and that the public who may intend to patronize a particular business, whether it dispenses merchandise or merely labor, ought not to be deceived or misled as to its identity, it is thoroughly settled, by a host of precedents, that courts of equity will grant injunctive relief against those who seek to divert and appropriate by imitative devices, symbols, or practices, the trade or patronage which would otherwise go to another established business. Glen & Hall Mfg. Co. v. Hall, 61 N.Y. 226, 19 Am.Rep. 278; Myers v. Kalamazoo Buggy Co., 54 Mich. 215, 19 N.W. 961, 20 N.W. 545, 52 Am.Rep. 811; Am[erican] Tobacco Co. v. Polacsek (C.C.) 170 Fed. 117; Kyle v. Perfection Mattress Co., 127 Ala. 39, 28 South. 545, 50 L.R.A. 628, 85 Am. St.Rep. 78. * * *
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'The bill does not charge in terms that the imitation of complainant's device was designed or fraudulent. But while design is significant, and may be in many cases of controlling importance, neither design nor actual fraud in such an imitation is a necessary element of the right to relief. * * * ...
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