Hilton v. Hilton
| Decision Date | 24 January 1919 |
| Docket Number | No. 42/505.,42/505. |
| Citation | 106 A. 139 |
| Parties | HILTON v. HILTON. |
| Court | New Jersey Court of Chancery |
See, also, 105 Atl. 65.
Pitney, Hardin & Skinner, of Newark, for complainant.
Selick J. Mindes and Robert H. McCarter, both of Newark, for defendant.
The application is for an order adjudging the respondent in contempt for acts alleged to constitute a violation of an injunction of this court and to punish him therefor.
On July 18, 1918, respondent was enjoined by a decree of this court entered on remittitur from the Court of Errors and Appeals "from using the name 'Hilton's' or 'Hilton,' alone or in such manner as to lead or induce the public to believe that the goods manufactured or sold by him are manufactured or sold by complainant and that the business conducted by defendant is the same as or a part of the business conducted by complainant, from using any emblem or device resembling the trade emblem of complainant in any way in his business and from conducting his business so as to deceive the public and induce it to believe that the goods manufactured or sold by defendant were manufactured or sold by complainant and that the business conducted by defendant is the same as or a part of the business conducted by complainant."
The question is one solely of fact. The legal and equitable rights of the parties have been settled by the final decree.
An extended argument was made in an attempt to show that the opinion of the Court of Errors and Appeals (104 Atl. 375, L. R. A. 1918P, 1174) indicated that the law was otherwise than as considered by this court on the determination of the main cause. An examination of the opinion of this court in the main cause and of the opinion of the Court of Errors and Appeals will indicate that the view of this court as to the law was not otherwise than as indicated by the Court of Errors and Appeals. This court never assumed that it might with propriety enjoin the use by a man of his name except where he was using it in his business in such a manner as to deceive the public, palm off his goods as the goods of another, or lead the public to believe that his business was that of or a part of that of another. As I indicated in Hilton v. Hilton, in previous contempt proceedings, 105 Atl. 65, I conceive that the difference between the Court of Errors and Appeals and this court was one of fact. I assumed that the word "Hilton" or "Hilton's" could not be used in a competitive business, practically, without deceiving the public. It was for this reason that I advised the final decree so wide in its scope. With this view the Court of Errors and Appeals differed. As I conceive it, the only question before me now is whether or not defendant is so using the word "Hilton" alone or in conjunction with other words and is so conducting his business as either to lead or induce the public to believe that the goods manufactured or sold by hin are manufactured or sold by complainant, or that the business conducted by defendant is the same as or a part of the business conducted by complainant, and that this is a question of fact.
The final decree has the effect of an adjudication that the manner in which the business was being conducted at the time it was made was within the ban of the injunction. After the final decree was entered and served, defendant changed his signs by adding the words, "J. Hilton, Prop." Upon application to punish him for contempt, I found that the additional words "J. Hilton, Prop." did not save the situation for the reasons which I then indicated. 105 Atl. 65. After the adjudication of contempt, defendant again changed his signs, and now uses the term, "Jos. Hilton & Co.," to designate his business. He had altered his signs so that they are as dissimilar as they can be from the signs of complainant, and yet have thereon the words I have indicated and not have thereon words drawing attention to the fact that they are not the stores of the established Hilton Company. The store dressings, etc., are precisely the same as they were at the time the main cause was determined, so that to outward appearances the stores of the Hilton Company and Joseph Hilton look the same, as in the nature of things they must. The labels of defendant have been changed so that they are dissimilar from labels of complainant, and the remarks which I have made with respect to the signs apply to them. There is in this case the same kind of evidence as there was in the main case as to confusion. Customers have come into the Hilton Company stores believing they were in the stores of Joseph Hilton. Mail has been received by the Hilton Company intended for Joseph Hilton. Mistakes have been made by individuals desiring to communicate with Joseph Hilton by telephone. A witness produced by defendant himself testifies that, although he was familiar with the stores of complainant and defendant, he did not know, until advised by a salesman in the employ of defendant, that all of the stores were not operated by one concern.
Defendant insists that he is not responsible for mistakes due to carelessness, and relies upon Rosenthal v. Blatt, 80 N. J. Eq. 90, 83 Atl. 387. What Vice Chancellor Leaming there said was that—
"Concrete instances of confusion which can only be appropriately attributed to extreme carelessness or inattention on the part of customers are clearly inadequate to establish a similitude which does not in fact exist." He then said that he was unable to believe that the manner in which the name, "Page of London," was being used by defendant in that case, was operative to deceive or mislead any reasonable persons. The rule, of course, is that the similitude must be sufficient to confuse an ordinarily prudent man, but the test as to the care or prudence is, not the precautions which a reasonably prudent man would take when investing money or what not, but the precautions which he would take ordinarily in determining, in buying a suit of clothes, that he was in the store he thought he was in. An ordinary individual, I think, in making up his mind as to whether he is in a store operated by a certain concern, the name of which he knows, gives but a cursory glance to the sign. If the most prominent word in the name of the operator of the store he desires to enter appears prominently over the store of a...
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