Great Atlantic & Pacific Tea Co. v. A & P Trucking Corp., A--35

• Decision Date: 28 July 1958
• Docket Number: No. A--35,A--35
• Citation: 51 N.J.Super. 412,144 A.2d 172
• Parties: , 118 U.S.P.Q. 560 The GREAT ATLANTIC AND PACIFIC TEA COMPANY, a New Jersey Corporation, Plaintiff-Appellant, v. A & P TRUCKING CORPORATION, a New Jersey Corporation, and Arthur E. Imperatore, Arnold D. Imperatore, George Imperatore, Eugene Imperatore and Eileen Imperatore, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 412

51 N.J.Super. 412

144 A.2d 172, 118 U.S.P.Q. 560

The GREAT ATLANTIC AND PACIFIC TEA COMPANY, a New Jersey

Corporation, Plaintiff-Appellant, v. A & P TRUCKING CORPORATION, a New Jersey Corporation, and Arthur E. Imperatore, Arnold D. Imperatore, George

Imperatore, Eugene Imperatore and Eileen

Imperatore, Defendants-Respondents.

No. A--35.

Superior Court of New Jersey.

Appellate Division.

Argued March 31, 1958.

Decided July 28, 1958.

John Milton, Jr., Jersey City, for plaintiff-appellant (Milton, McNulty & Augelli, Jersey City, attorneys; Munn, Liddy, Daniels & March, and Sylvester J. Liddy and Joe E. Daniels (of the New York bar), New York City, of counsel; Angelo A. Mastrangelo, Ridgefield, on the brief).

Milton T. Lasher, Hackensack, for defendants-respondents.

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

FREUND, J.A.D.

The plaintiff, owner and operator of an extensive chain of retail food stores under the designation of 'A & P,' seeks an injunction against the use of those letters or symbol by the defendants, who are engaged in the business of a common carrier transporting general merchandise by motor vehicles. From the judgment of the Chancery Division denying relief except in a minor respect, the plaintiff appeals.

For the most part, the salient facts are not in dispute. The plaintiff has for many years used the letters 'A & P' as a trademark on merchandise and as a trade name in the operation of its business. It was first registered as a trade-mark in 1885, although it has been used as a symbol since 1870. As a trade name, the symbol has been used in connection with various designations, such as 'A & P Food Stores,' A & P Super Markets,' and just 'A & P,' both with and without the ampersand, enclosed within a circle, on store fronts and every form of advertising medium. The distinctive design appears in Chinese vermillion coloring with the symbol, in most instances, in gold and silver. Plaintiff owns and operates a large fleet of trucks and engages contract carriers for the transportation of merchandise to its store and warehouses. The 'A & P' symbol is displayed upon its trucks and upon most of the trucks of its contract carriers, which together number about 9,000 vehicles. Plaintiff's gross annual sales currently are in excess of $4 billion.

In 1945 or 1946, a trucking business was conducted by the partnership of Amorino and Pangione, in West New York, N.J., under the name of 'A & P Trucking Company.' In April 1947 the defendant 'A & P Trucking Corporation' was incorporated under the laws of this State by the Amorino family. In January 1947 the individual defendants, members of the Imperatore family, and a brother, now deceased, were also engaged in the trucking business as a partnership under the name of Imperatore Bros. Trucking Co., from the same address in West New York. In August 1947 the Imperatores purchased the stock of the defendant, A & P Trucking Corporation, and until December 1948 they engaged in the trucking business under the partnership and corporation, but in December 1948 they transferred the partnership assets to the corporation and since then the trucking business has been conducted under the corporate name. Beginning with one or two trucks, the defendant now operates approximately 75 trucks and trailers, and in 1956 its gross business was in excess of $800,000.

Initially, the action was brought for injunctive relief and for damages and loss of profits, but at the beginning of the trial plaintiff abandoned its claim for money damages, and sought only to enjoin defendant from using the letters and symbol 'A & P' on its trucks or otherwise. The basis of the complaint was plaintiff's claim to the exclusive proprietory right to the use of the letters and symbol 'A & P,' and that defendant's use thereof infringes upon plaintiff's rights, constituting unfair competition in that it has caused or is likely to cause confusion on the part of the public.

After a lengthy trial, the trial judge rendered an opinion in which for nineteen specific reasons he concluded that plaintiff was not entitled to the injunctive relief sought, but held that,

'in order that complete equity may be accomplished in the instant case, defendant corporation will be required to change its existing letterheads and envelopes so that no longer shall the letters 'a. & p.' appearing thereon in small case type and separated by a space from and colored differently than the words 'Trucking Corporation,' be used in that manner on defendant corporation's letterheads, envelopes or other media.'

The court held that defendant's acquisition of the stock of A & P Trucking Corporation was accomplished in good faith and that there was no proof of any deception or fraud by defendants in their contact with the public. Summarizing the court's findings and determinations, they are that (1) the defendant's use of the letters 'A & P' or 'A' and 'P' is in connection with and an integral part of its entire corporate title and not used with a circle around them or in the distinctive design and lettering of the plaintiff; (2) at no time has defendant represented that it has any connection or affiliation with the plaintiff; (3) the parties are not competing in the mercantile market, plaintiff being engaged in the business of a retail grocer as it has been for about one hundred years and there being no suggestion that it is going to embark in the business of common carrier; the defendant sells no goods, but is a commercial shipper of freight by motor vehicle; (4) the businesses of the parties and their areas of operation are completely dissimilar; there is no identity of any kind between their customers, but they are separate groups, plaintiff's being housewives and defendant's shippers of merchandise; (5) there is no deception nor confusion nor likelihood thereof; the defendant's use of the letters 'A & P' as part of its corporate name is so foreign to plaintiff's use of these letters for its wares and its stores as to render unlikely confusion of the identity of the two companies; (6) the plaintiff did not present proof of loss of a single customer nor any likelihood thereof, and plaintiff's trade is not in danger of harm due to the use by defendant of its corporate name; and 'The near decade during which the defendant has used the designation in its business as a common carrier, minimizes the likelihood of mistaken association'; (7) the described operations of the parties are so unrelated that the good will and reputation of the plaintiff are not subjected to the defendant's business or market reputation.

To support its claim that defendant's use of the letters 'A & P' upon its trucks is calculated to confuse and mislead the public to believe that they are vehicles of the plaintiff, the plaintiff presented evidence that on three occasions it received complaints of conduct by drivers mistakenly assumed to be plaintiff's employees: one, a telephone call or letter from an unidentified woman in 1949 or 1950, to the effect that while driving she had been 'cut off' the highway by the driver of an 'A & P' truck; another, that in 1955 an undisclosed person telephoned to complain that his car had been damaged; and lastly, that in 1955 a New York attorney mistakenly instituted suit for property damage against plaintiff when he should have sued the defendant.

Plaintiff offered in evidence a report based upon an opinion poll conducted by Advertest Research Incorporated, an opinion research organization, indicating that a good percentage of those interviewed would confuse defendant's trucks with plaintiff's, but the report was excluded on the ground of hearsay and the exclusion is now argued by the plaintiff as being erroneous. Although the report itself was excluded, there was testimony by witnesses interviewed during the poll that they believed that the colored photographs of the defendant's trucks, used by the researchers in making the survey, showed plaintiff's vehicles. It is significant that each of these witnesses was a customer of the plaintiff and remained so after the interview. None of them testified to a negative reaction toward plaintiff when they discovered that the trucks were defendant's and not plaintiff's. There was testimony by two advertising experts, one of whom did some of plaintiff's advertising, that in their opinion plaintiff's good will and the value of its trade-mark would be 'diluted' by defendant's use of its corporate name.

While the plaintiff argued that discourtesy or careless driving by defendant's drivers or unclean appearance of defendant's trucks may reflect unfavorably upon it, there was no proof of such behavior or of the dirty appearance of its vehicles, but there was proof that plaintiff attempted to maintain a certain standard of courtesy of its drivers and of the cleanliness of the trucks bearing its emblem.

The distinction between a trademark and a trade name is well defined, the former being applicable to a vendible article and serving to identify it, and the latter relating to a business and its good will. American Steel Foundries v. Robertson, 269 U.S. 372, 46 S.Ct. 160, 70 L.Ed. 317 (1926). The plaintiff claims an exclusive proprietory right to the letters and symbol 'A & P,' both as a registered trade-mark used on merchandise which it sells and as a trade name under which its business is known.

It has become common practice to refer to a corporation, its business and products or services, by an abbreviation of its full corporate name, as 'A & P' for The Great Atlantic & Pacific Tea Co., as in the instant case, or 'A.T. & T.' for American Telephone & Telegraph, or 'G.E.' for General Electric, or 'Lackawanna' for Delaware, Lackawanna and Western Railroad, to mention just a few. These have become valuable trade names and are entitled to protection in an appropriate case. Delaware, Lackawanna and Western Railroad v. Lackawanna Motor...