Greyhound Corporation v. Rothman

• Decision Date: 08 April 1949
• Docket Number: Civil Action No. 4083.
• Citation: 84 F. Supp. 233
• Parties: GREYHOUND CORPORATION et al. v. ROTHMAN et al.
• Court: U.S. District Court — District of Maryland

84 F. Supp. 233

GREYHOUND CORPORATION et al. v. ROTHMAN et al.

Civil Action No. 4083.

United States District Court D. Maryland.

April 8, 1949.

COPYRIGHT MATERIAL OMITTED

Joseph R. Byrnes and David P. Gordon, both of Baltimore, Md., for plaintiffs.

Nathan Hamburger, of Baltimore, Md., for defendants.

COLEMAN, Chief Judge.

This is a case of alleged infringement of a trade name and trade symbol, and also of unfair competition. The plaintiffs, the Greyhound Corporation and its affiliate, Pennsylvania Greyhound Lines, Inc., ask that the three defendants, doing business under a partnership known as the Greyhound Cab Co., be permanently restrained from using the trade-name "Greyhound" and the figure of a running greyhound dog as a symbol on their taxicabs in Baltimore.

Most of the material facts in the case have been stipulated by the parties. The plaintiffs conduct a nationwide passenger motor bus service. One of them, the Greyhound Corporation, incorporated in Delaware, with principal offices in Chicago, has been engaged since 1926 in passenger motor bus service, both directly and through ownership or management of twenty-three subsidiary and affiliate corporations, including the other plaintiff in this suit, namely, Pennsylvania Greyhound Lines, Inc., which is also a Delaware corporation with principal offices in Cleveland, Ohio. This latter company has been in existence since 1930. It was originally formed to carry out an arrangement between the Greyhound Corporation and the Pennsylvania Railroad whereby the former's motor bus lines operating in the territory served by the Railroad became merged under the management of the Greyhound Corporation, which, with its various subsidiary and affiliate corporations including the other plaintiff, Pennsylvania Greyhound Lines Inc., has always been managed and operated as a single, continuous system of motor bus transportation, known as the Greyhound System. It first afforded service to and from Baltimore in 1928, and for many years past has served virtually the entire United States. Since the establishment of the Greyhound System travelers have been able to purchase tickets at any point served by the System, for transportation to any other point served. It operates its own terminals. From 1928 to 1934, it rented terminal facilities in Baltimore but since 1934, it has operated its own terminals there.

Shortly after its formation in 1926, the Greyhound Corporation acquired, through stock ownership, the Safety Motor Coach Lines, Inc., a Michigan corporation operating passenger motor bus service between Chicago and Muskegon, Michigan. For two years prior thereto, that is, since 1924, all the buses operated by this Michigan Company which called itself the Greyhound Line, were painted blue and white, and they displayed the name "Greyhound" and the figure of a running greyhound dog. Thereafter, as the Greyhound Corporation acquired or organized and managed other subsidiary or affiliate companies, it required all of them to use the name "Greyhound" and the dog symbol on their buses, terminals, lunchrooms and related facilities, drivers' uniforms, tickets, stationery, schedules, advertising, etc., in a uniform manner. All buses operated by the Greyhound System have always been substantially uniform as to type and also color, i. e., blue and white.

In May, 1928, the Greyhound System initiated through service between Baltimore, Pittsburgh, Cleveland and other points west, via the Blue Ridge Transportation Company which previously had operated as an independent line between Baltimore and other points in Maryland and also some in Pennsylvania. As early as July, 1928, the Greyhound System advertised this service in the Baltimore press, and in October, 1928, the Greyhound Corporation, through a wholly owned subsidiary, Greyhound Lines, Inc., an Indiana corporation, inaugurated its own direct service between Baltimore, Washington and Pittsburgh via Gettysburg. Thereafter, up to the present time, the Greyhound Corporation, through the Greyhound Lines, Inc., and the latter's successor, the Pennsylvania Greyhound Lines, Inc., that is, the other plaintiff in the present suit, has, without interruption, maintained this same service to and from Baltimore which, with the growth of traffic, has increased from two arrivals and departures a day in October, 1928, to 106 a day at the present time.

The first appearance of the name "Greyhound" and the running dog symbol on or in connection with any transportation in Baltimore other than that afforded by the Greyhound System, occurred in the year 1932 when one Ralph Adelman, who was then operating four taxicabs in the city, adopted this name and insignia as a result of having seen them on a Greyhound bus. Adelman used both name and figure until December 31, 1933, when he discontinued his taxicab business, upon refusal of the Public Service Commission of Maryland to renew his permit. On January 15, 1934, he gave to one William H. Rothman, one of the defendants in the present case, who, with the other defendants as partners was organizing the Greyhound Cab, Inc., a written authorization "to use the name Greyhound in connection with the title of the corporation you are to form for the taxicab business." No consideration was given Adelman for this permission. On January 16, 1934, the present defendants incorporated the Greyhound Cab Inc. under the Maryland law, and shortly thereafter began to operate twenty-three taxicabs in Baltimore under permits from the Public Service Commission, prominently displaying the name "Greyhound" and the running dog figure on the sides of these taxicabs. These three individual defendants had previously been separately engaged in the taxicab business in Baltimore under the respective trade names of University Cab Co., Peerless Cabs, and Mt. Royal Cab Co., Inc.

Some time in the early part of the year 1940 officials of the plaintiff companies first learned of this use of the name "Greyhound" and the running dog symbol by the Greyhound Cab Inc. and through their counsel, requested that this practice be stopped. By this time the business of the Greyhound Cab Inc. had materially increased and it was operating approximately seventy-five taxicabs in Baltimore.

In February, 1941, the present plaintiffs being unsuccessful in their endeavor to get the Greyhound Cab, Inc., voluntarily to stop using the name "Greyhound" and the running dog symbol, filed suit in this Court asking for an injunction against the Greyhound Cab, Inc. While this suit was pending, that is, on April 1, 1941, the cabs of the Greyhound Cab, Inc., were transferred to a partnership consisting of the three present defendants trading as Greyhound Cab Company. The Maryland Public Service Commission reissued permits to this partnership. Thereupon, the defendants placed their taxicabs under the so-called Diamond Cab Company system, which was an organization in Baltimore of various taxicab owners who operated their cabs jointly as one system but retained title to the individual cabs. The defendants' cabs were repainted to conform to the Diamond colors and scheme of decoration. The figure of the running dog was eliminated from defendants' cabs and a red diamond symbol, with the words "Diamond Cab," appeared conspicuously on their rear doors, although on their front doors where, pursuant to requirement of the Maryland Public Service Commission, the owner's name must be inscribed, the words "Greyhound Cab" did appear but in three-inch black lettering — much smaller than the "Diamond Cab" lettering.

Relying upon the aforegoing, the plaintiffs on January 29, 1942, entered a voluntary dismissal without prejudice of their suit in this Court against the Greyhound Cab, Inc. However, in the Fall of 1943, the defendants, without informing the plaintiffs, withdrew their taxicabs from the Diamond System and continued to operate them directly under their partnership name, Greyhound Cab Co. The cabs were repainted and redecorated to eliminate all reference to the Diamond System. The word "Greyhound" was placed on the sides of the cabs in even larger display lettering than the defendants had used on their cabs before entering the Diamond System, and the figure of the running greyhound dog, illuminated at night, was featured on the front part of the roof of each taxicab. All of this insignia the defendants have continued to use up to the present time.

In the Summer of 1947 officials of the plaintiffs learned for the first time that defendants had withdrawn from the Diamond System, although some of defendants' cabs had been seen from time to time on the streets of Baltimore with this changed insignia by representatives of plaintiff companies. Plaintiffs thereupon, in the Summer of 1947, made a formal protest through counsel against defendants again using the name "Greyhound" and the running dog symbol. They contend that their reason for this protest being so delayed was primarily the War and the very heavy pressure of emergency service on which they had to concentrate all their attention and efforts. Being unsuccessful with this protest, the present suit was filed by plaintiffs on July 20, 1948.

Defendants, in denying the right of the plaintiffs to enjoin them from use of the name "Greyhound" and the running dog symbol, rely primarily upon the defense of abandonment, acquiescence, laches and estoppel in not making timely objection to such use by the defendants. Clearly, if defendants have any sound defense to the plaintiffs' suit it must be upon one or more of these grounds, because there can be no doubt on the stipulated facts and the testimony that the plaintiffs were the first to use the name and symbol in question in Baltimore. Use by the plaintiffs began in the year 1928, whereas the defendants did not begin until 1934, and neither the name nor symbol was used by anyone else in Baltimore except the Greyhound System prior to 1932.

It is equally clear that the name "Gr...