Guild & Landis, Inc. v. Liles & Landis Liquidators, Inc., 114907

• Decision Date: 30 March 1959
• Docket Number: No. 114907,114907
• Citation: 207 N.E.2d 798,2 Ohio Misc. 169
• Court: Ohio Court of Common Pleas
• Parties: , 31 O.O.2d 433 GUILD & LANDIS, INC., v. LILES & LANDIS LIQUIDATORS, INC., et al.

Page 169

2 Ohio Misc. 169

207 N.E.2d 798, 31 O.O.2d 433

GUILD & LANDIS, INC., v. LILES & LANDIS LIQUIDATORS, INC., et al.

No. 114907.

Court of Common Pleas of Ohio, Montgomery County.

March 30, 1959.

Pickrel, Schaeffer & Ebeling, Dayton, for plaintiff.

John W. Dale, Dayton, for defendants.

MARTIN, Judge.

Plaintiff, Guild & Landis, Inc., brings this action to restrain and enjoin defendants from using, advertising or conducting business under the name of Liles & Landis Liquidators, Inc.

Plaintiff claims that it has engaged in the insurance business in the Dayton area under the trade name of Guild & Landis for thirty-five years, during which period it has rendered good insurance service and has developed a good name, reputation and extensive goodwill in the insurance business; that it has expended much time, effort and money in building and creating the goodwill associated with its name, particularly through extensive advertising in the newspapers and on radio and television; that as a result the name of Guild & Landis has become familiarly associated in the public mind with insurance in the Dayton area.

Plaintiff further claims that the defendant, Jack W. Liles, knowing plaintiff's name, the general public's familiarity therewith, and the good reputation and extensive goodwill associated therewith, adopted and used the name Liles & Landis Liquidators in early 1958, and after July 29, 1958, the corporate name of Liles & Landis Liquidators, Inc., becasue of the likeness and similarity of such mane to plaintiff's name.

That said defendants by extensively advertising said name on television, radio and in the newspapers, intended to and did confuse, and did deceive the public, and thereby unlawfully appropriated to their own use and advantage the good name, reputation and long-established goodwill of plaintiff, thereby injuring plaintiff's good name and goodwill to plaintiff's irreparable damage, for which plaintiff claims it has no adequate remedy at law.

Defendant, Jack Liles, and the defendant corporation, Liles & Landis Liquidators, Inc., admit that the latter is doing business at 2301 North Main Street, Dayton 1, Ohio, selling furniture, appliances and other merchandise; admits that the defendant corporation is an Ohio corporation and that defendant, Jack W. Liles, is the principal shareholder, officer and the general manager thereof.

Defendants deny that plaintiff is entitled to an injunction restraining and enjoining them from the use of the name Liles & Landis Liquidators, Inc., first on the ground that defendant corporation does not operate a business competing with plaintiff's business, which is confined to the sale of insurance; and second, that the name Liles & Landis Liquidators, Inc., is sufficiently different from plaintiff's name so that a reasonably careful and intelligent person would not confuse the names or lines of business engaged in by the parties; and third, that plaintiff has sustained no damage as a result of the use of the name Liles & Landis Liquidators, Inc.

This case was tried to the court on the merits, in which the following facts were clearly established: that plaintiff, Guild & Landis, Inc., has been engaged in the sale of insurance in this community for more than thirty-five years, having operated as a partnership for the first ten years, and as a corporation the last twenty-five years (since 1933); that plaintiff sells and writes many lines of insurance, but has specialized for many years in the fire and casualty fields; that it occupies, and has occupied for more than twenty years, offices in the Gem City Building at 4 North Main Street, Dayton, Ohio, the same street on which Liles & Landis has its store or outlet; that it has advertised extensively for many years in this community through television, radio and the newspapers, having expended therefor, not including its agents' expenditures, the sum of more than seventy-five thousand dollars during the past eight years; that the purpose of such advertising was to identify the plaintiff's name with insurance, and vice versa; that as a result of plaintiff's business practice and its advertising, it has built up an extensive volume of business in excess of $1,700,000 premium income per year, and in connection therewith has developed an extensive goodwill and good business reputation throughout the greater Dayton area; that people generally in the greater Dayton community have been and are familiar with the name Guild & Landis, and identify such name with insurance, particularly fire and casualty insurance, and have not, until defendant started using the name Liles & Landis Liquidators, Inc., associated it with any other line of business; that Jack W. Liles began operating under the name of Liles & Landis Liquidators in the spring of 1959 at 2301 North Main Street, Dayton, Ohio, at which place he operates a carnival-type store or outlet selling furniture, household appliances, boats and miscellaneous articles; that thereafter, on July 29, 1959, he incorporated his business under the name of Liles & Landis Liquidators, Inc., in which he was the principal stockholder, officer and general manager; that prior thereto, and more extensively thereafter he advertised his business to the public as a liquidating business using as a slogan, 'We stipulate we liquidate'; that such business expended for a period of weeks as much as five hundred dollars per week in advertising on radio, television and the newspapers; that the name 'Liles' was at all times pronounced in vocal advertising with a long 'i'--the same as 'ui' in 'Guild' (as in 'mild') that the two words 'Liles' and 'Guild,' used in connection with '& Landis' had such similarity of sound that many persons mistook the name 'Liles & Landis' for 'Guild & Landis,' including such persons as telephone operators, who mistakenly routed at least fourteen calls in the fall on 1958 to the offices of Guild & Landis that were in fact intended for a store that sold cut-rate furniture on a liquidating basis.

That Jack Liles, as a promoter, engaged in the cut-rate sale of merchandise in which he used carnival tactics and puffing that when he first started in business, he stated to the manager of the Dayton Better Business Bureau that the name 'Landis' in the name 'Liles & Landis,' was the name of his silent partner who lived in New Jersey and furnished financial backing for the enterprise; that at the time of trial, Liles admitted that he had no such silent partner by the name of Landis, but claimed that he used the name Landis because it was the name of a town in North Carolina in the same general locality where he purchased much of his merchandise; that Liles from time to time represented to the public that he had two branch offices, one in New Jersey and one in California, which Liles admitted were not in fact branch offices bearing the company name, but only the telephone numbers of relatives, to wit, his uncle in California, and his father-in-law in New Jersey.

That the name of Guild & Landis, Inc., was known to Liles before he started using the name Liles & Landis in connection with his business; that since he admitted he had no partner or backer by the name of Landis, and had no office, business or goodwill established in Landis, North Carolina, his final attempt to justify his adoption of the '& Landis' name by the statements that the three 'Ls' in Liles & Landis Liquidators...