Gen. Fruit Stores, Inc. v. Makarian
| Decision Date | 29 March 1938 |
| Citation | 13 N.E.2d 929,300 Mass. 90 |
| Parties | GENERAL FRUIT STORES, Inc., v. MAKARIAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Suit by the General Fruit Stores, Inc., to enjoin John H. Makarian from using the trade-name ‘United Markets' in the City of Worcester. From an interlocutory decree in favor of defendant, and from a final decree dismissing the bill, plaintiff appeals.
Reversed, with directions.Appeal from Superior Court, Worcester County; Burns, Judge.
S. Lurier, of Worcester, for appellant.
G. S. Taft, of Worcester, for appellee.
The plaintiff seeks to enjoin the defendant from using the name ‘United Markets' in the city of Worcester, and from advertising or exhibiting signs bearing that name in connection with his store in that city. The suit was referred to a master whose report, except as modified by the sustaining of certain exceptions of the defendant, as hereinafter appears, was confirmed in an interlocutory decree. A final decree dismissing the bill was entered. The plaintiff appealed from both decrees. The evidence is not reported and the master's findings of fact are conclusive unless it appears from the report itself that they are plainly wrong. Martin v. Barnes, 214 Mass. 29, 100 N.E. 1023.MacLeod v. Davis, 290 Mass. 335, 195 N.E. 315. This court must decide the suit upon the report in accordance with its own judgment. Cohen v. Silver, 277 Mass. 230, 178 N.E. 508.
The master found that the plaintiff, a corporation organized in 1932 under the laws of Rhode Island, has, since that date, conducted a store on Main street in Worcester for the sale of fruit, groceries, vegetables, canned goods and provisions. During most of the time it used the name ‘United Fruit Stores' in its newspaper advertising and in its signs affixed to various parts of its premises. Its store has grown from a small beginning to one which now has a frontage of one hundred sixty-three feet on Main street with a depth of seventy-five feet, and with a parking space for its customers' automobiles occupying a frontage of about sixty feet adjacent to Main street and leading to a parking space adjacent to Murray avenue in the near of the store. It does a large volume of business, which is entirely on a cash and carry basis, and employs one hundred thirty-two persons. On March 24, 1933, it filed a certificate in the office of the city clerk of Worcester to the effect that it was doing business at its Main street location under the name or designation of ‘United Fruit Stores.’ (See G.L. [Ter.Ed.] c. 110, § 5). On November 18, 1936, it filed a similar certificate of doing business under the name or designation of ‘United Public Markets.’ In June, 1936, it began and has continued to sell at its store a great variety of canned goods, each can being labelled in large type with the brand of the goods and also in smaller letters with the words ‘United Public Markets.’ From June, 1936, to the present time, it has operated between Providence, Rhode Island, and Worcester five large trucks which bear conspicuously the words ‘United Public Markets.’ In September, 1936, it placed at the Main street entrance to its parking space, and now maintains, a Neon sign six feet square which reads: ‘Drive in-Free Parking to Customers of United Public Markets.’ At the same time it also placed an identical sign at the Murray avenue entrance to the parking space, and since September, 1936, it has maintained two conspicuous wooden signs at the parking space bearing similar words. For four months prior to the filing of this bill it maintained a sign about fifteen inches hign, which reads ‘United Public Markets,’ in one of its Main street show windows and also two conspicuous signs in the form of seals, which read ‘United Public Markets,’ on the sides of its Main street entrance. Ever since the summer of 1936, it has used, from time to time in its store, paper signs one foot high, changed occasionaly in the wording but including the words ‘United Public Markets.’ In popular parlance its store has always been and still is referred to frequently as ‘the United.’ Three old awnings projecting over the Main street sidewalk in front of the store now bear the words ‘United Fruit Stores.’ The Worcestor City Directory, published early in 1937, lists ‘United Fruit Stores' in the main body of its publication and also in that part entitled ‘Worcester Business Finder’ under the heading ‘Fruit Dealers-Retail.’ A similar listing appears in the Worcester District Telephone Directory dated March, 1937. Neither the city nor telephone directory contains any listing of ‘United Public Markets' or ‘United Markets.’
On or about April 30, 1937, the defendant opened a store on the same side of Main street as the plaintiff's store is located and about three-tenths of a mile south. The defendant deals in merchandise which is similar in character and variety to that which the plaintiff sells. On March 9, 1937, the defendant filed a certificate in the office of the city clerk of Worcester to the effect that he was doing business under the name or designation of ‘United Markets.’ About March 10, 1937, he ordered a Neon illuminated sign for his store bearing the name ‘United Markets,’ and this sign was installed about April 15, 1937. Shortly after March 29, 1937, the defendant placed a paper sign in the window of his store which read, ‘United Markets will be opened soon.’ His store is on a corner and has a frontage of nineteen feet on Main street and a depth of forty feet He works there and employs two clerks.
Up to April 15, 1937, the plaintiff advertised extensively in Worcester newspapers under the style of ‘United Fruit Stores.’ On April 16, 1937, it had an advertisement in a Worcester newspaper which read in part as follows: This advertisement carried as its largest display the word ‘United.’ It also contained in less conspicuous type the following ‘United Fruit Stores-Worcester's finest market, 662-674 Main St.’
Since the display of signs at the defendant's store reading ‘United Markets' there have been various known instances of confusion on the part...
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General Fruit Stores v. Makarian
...300 Mass. 90 13 N.E.2d 929 GENERAL FRUIT STORES, INC. v. JOHN H. MARKARIAN. Supreme Judicial Court of Massachusetts, Worcester.March 29, 1938 ... December 9, 1937 ... ...