George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., BUICK-GM

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPER CURIAM
Citation5 Ohio App.3d 71,5 OBR 182,449 N.E.2d 503
Parties, 5 O.B.R. 182 GEORGE P. BALLAS, Appellant, v. TAYLOR BUICK, INC., et al., Appellees. *
Decision Date16 April 1982
Docket NumberBUICK-GM,INC

Page 71

5 Ohio App.3d 71
449 N.E.2d 503, 5 O.B.R. 182
GEORGE P. BALLAS BUICK-GMC, INC., Appellant,
v.
TAYLOR BUICK, INC., et al., Appellees. *
Court of Appeals of Ohio, Sixth District, Lucas County.
April 16, 1982.
Syllabus by the Court

1. In determining whether a trade dress of a product is entitled to protection under R.C. 4165.03 because a competing trade dress causes a "likelihood of confusion," the test is not whether the plaintiff in the action deems the defendant's action to be reprehensible, but rather a court must examine whether the buying public is likely to be confused by the competing trade dress.

2. It is generally improper for a court to dispose of a case on the merits following a hearing for preliminary injunction without consolidating that hearing with a hearing on the merits or otherwise giving notice to counsel that the merits would be considered. A trial court acts properly in dismissing plaintiff's complaint, if, after an extensive hearing, the evidence "does not reveal any conflict of material fact that justifies a full trial on the merits."

Richard Farrar, Toledo, for appellant.

Robert G. Clayton, Toledo, for appellees.

PER CURIAM.

This appeal results from the dismissal of plaintiff's complaint for temporary and permanent injunctions and for damages. Plaintiff filed a complaint against Taylor Buick, Inc. and Stephen D. Taylor, alleging that plaintiff, George P. Ballas Buick-GMC, Inc., in 1977 commenced a large scale advertising promotional program in the Toledo metropolitan area, which involved the erection in the city of Toledo at Interstate 475 and Washington Boulevard, of a billboard which became a familiar design with the motor vehicle buying public in the Toledo metropolitan market. Plaintiff alleged that the defendant, Taylor Buick, Inc., under the direction of defendant Stephen D. Taylor, did, without permission, copy and duplicate the design on the billboard and placed its billboard at Interstate Route 475 and Jackman Road. The plaintiff stated in its complaint that the acts of the defendant constituted unfair competition with plaintiff and were appropriations of the research, design, promotion and skill of the plaintiff, and that defendants committed an unlawful appropriation of plaintiff's property rights in said advertising

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design and deprived plaintiff of sales and profits to which it was entitled. Plaintiff further alleged that the conduct of the defendants was calculated and designed to unlawfully trade upon the popularity and goodwill created by plaintiff in the Toledo metropolitan area.

The plaintiff copied the familiar Interstate Highway System sign design for the background for some of its billboard advertising. The billboard utilized a rectangular green sign with a white border; the advertising copy appears in white letters. The name "George Ballas" is the most predominant feature of the sign. The Interstate Highway System shield, consisting of red, white and blue colors, is displayed on the green background. On the shield appears the word, "Ohio," in white lettering, and across the lower blue shield, in white lettering, the symbol,

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"# 1." The Ballas billboard has never been copyrighted nor has any part of it been registered as a service mark.

In 1981 the defendant, Taylor Buick, Inc., erected a billboard utilizing the same rectangular green sign with a white border. Across this green background the Taylor name is prominently displayed. The Taylor sign also utilizes the Interstate Highway System red, white and blue shield. However, in the red shield appears in white lettering the word "Toledo's" and in the lower blue shield following appears in white lettering, "# 1." The Taylor sign prominently displays the word "Taylor" and the Buick Hawk. The Buick Hawk had been used on the George Ballas billboard but has now been removed. Plaintiff alleged that the defendant's billboard was painted directly from a photograph of plaintiff's billboard containing the same design concept.

The cause came on for hearing on plaintiff's motion for preliminary injunction and the trial court, after an extensive hearing, filed the following judgment entry:

[449 N.E.2d 505] "It is therefore ORDERED, ADJUDGED and DECREED that the complaint of the plaintiff, George P. Ballas Buick-GMC, Inc., is hereby dismissed with prejudice at the plaintiff's costs."

Thereafter, the plaintiff filed a motion for relief from that judgment on the grounds that Civ.R. 65(B)(2) requires a full trial on the merits unless there was a consolidation of the preliminary hearing with a hearing on the merits. The trial court ruled that since the plaintiff could not show any right to relief, it was appropriate for that court to dismiss the plaintiff's complaint and said court denied plaintiff's motion for relief from judgment. From the judgment of the court the plaintiff...

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24 practice notes
  • Ohioans for Concealed Carry v. City of Columbus, No. 18AP-605
    • United States
    • United States Court of Appeals (Ohio)
    • August 1, 2019
    ...Inc. v. Nay , 10th Dist. No. 92AP-1056, 1993 WL 51087 (Feb. 23, 1993), citing George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc. , 5 Ohio App.3d 71, 449 N.E.2d 503 (6th Dist.1982). See Athens v. Testa , 10th Dist., 2019-Ohio-277, 119 N.E.3d 469, ¶ 21 ; Ohio Serv. Group, Inc. v. Integrat......
  • American Family Life Ins. Co. v. Hagan, No. 1:02-CV-1791.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • October 25, 2002
    ...likelihood of confusion." George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio Misc.2d 16, 449 N.E.2d 805, (1981), affirmed, 5 Ohio App.3d 71, 449 N.E.2d 503 (1982) (citing Mr. Gasket Co. v. Travis, 35 Ohio App.2d 65, 299 N.E.2d 906, 915 (1973)) (emphasis In other words, to show a......
  • Degidio v. West Group Corp., No. 3:99 CV 7510.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • March 18, 2002
    ...claim, Defendants cite to George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 449 N.E.2d 805, 5 Ohio Misc.2d 16 (1981), aff'd, 449 N.E.2d 503, 5 Ohio App.3d 71 (1982), in which Defendants assert that the court "label[ed] plaintiff's claim under § 4165.02 as `misappropriation claim."' De......
  • Thompson v. Youart, No. 11459
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 6, 1990
    ...source confusion. George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio Misc.2d 16, 449 N.E.2d 805 (Ct.App.1981), aff'd, 5 Ohio App.3d 71, 449 N.E.2d 503 (1982). A state may not prohibit copying of articles, but may protect businesses in their use of labels, or distinctive dress, i......
  • Request a trial to view additional results
24 cases
  • Ohioans for Concealed Carry v. City of Columbus, No. 18AP-605
    • United States
    • United States Court of Appeals (Ohio)
    • August 1, 2019
    ...Inc. v. Nay , 10th Dist. No. 92AP-1056, 1993 WL 51087 (Feb. 23, 1993), citing George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc. , 5 Ohio App.3d 71, 449 N.E.2d 503 (6th Dist.1982). See Athens v. Testa , 10th Dist., 2019-Ohio-277, 119 N.E.3d 469, ¶ 21 ; Ohio Serv. Group, Inc. v. Integrat......
  • American Family Life Ins. Co. v. Hagan, No. 1:02-CV-1791.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • October 25, 2002
    ...likelihood of confusion." George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio Misc.2d 16, 449 N.E.2d 805, (1981), affirmed, 5 Ohio App.3d 71, 449 N.E.2d 503 (1982) (citing Mr. Gasket Co. v. Travis, 35 Ohio App.2d 65, 299 N.E.2d 906, 915 (1973)) (emphasis In other words, to show a......
  • Degidio v. West Group Corp., No. 3:99 CV 7510.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • March 18, 2002
    ...claim, Defendants cite to George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 449 N.E.2d 805, 5 Ohio Misc.2d 16 (1981), aff'd, 449 N.E.2d 503, 5 Ohio App.3d 71 (1982), in which Defendants assert that the court "label[ed] plaintiff's claim under § 4165.02 as `misappropriation claim."' De......
  • Thompson v. Youart, No. 11459
    • United States
    • New Mexico Court of Appeals of New Mexico
    • February 6, 1990
    ...source confusion. George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc., 5 Ohio Misc.2d 16, 449 N.E.2d 805 (Ct.App.1981), aff'd, 5 Ohio App.3d 71, 449 N.E.2d 503 (1982). A state may not prohibit copying of articles, but may protect businesses in their use of labels, or distinctive dress, i......
  • Request a trial to view additional results

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