Hub Dress Mfg. Co. v. Rottenberg

• Decision Date: 12 January 1921
• Citation: 237 Mass. 281,129 N.E. 442
• Parties: HUB DRESS MFG. CO. v. ROTTENBERG et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 281

129 N.E. 442

HUB DRESS MFG. CO.

v.ROTTENBERG et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 12, 1921.

Appeal from Superior Court, Suffolk County; Frederick Lawton, Judge.

Suit by the Hub Dress Manufacturing Company against Samuel Rottenberg and Isaac S. Pinkerton, a partnership doing business under the name and style of Hub Novelty Dress Company. From decree dismissing the bill, plaintiff appeals. Decree ordered affirmed.

Dunbar, Nutter & McClennen, of Boston (Jacob J. Kaplan and George P. Davis, both of Boston, of counsel), for appellant.

Stoneman & Hill, of Boston, for appellees.

CARROLL, J.

The plaintiff, a Massachusetts corporation, has carried on business since January, 1918, in its corporate name, the Hub Dress Manufacturing Company. In July, 1919, the defendants adopted the name Hub Novelty Dress Company. The plaintiff in this suit in equity prays that the defendants be restrained from conducting their business under the name ‘Hub Novelty Dress Company’ or ‘any other name containing both the words ‘Hub’ and ‘Dress.” The defendant demurred, but went to trial on the merits. This was a waiver of the right to be heard on the demurrer. Bauer v. International Waist Co., 201 Mass. 197, 200, 201, 87 N. E. 637.

The parties are manufacturers of women's dresses, selling their goods only at wholesale. The plaintiff sells throughout the United States, the defendants in New England, and a large part of the business of both is in Boston. The dresses sold by the plaintiff are all of staple cotton material such as prints and calicoes, which can be washed. The defendants make and sell silk or woolen dresses which are rarely of plain or staple texture. They are known in the trade as novelty goods and are not what are called wash dresses. The judge found that the plaintiff and defendants were not competitors and a decree was entered dismissing the plaintiff's bill.

While it is the duty of this court in a suit in equity where the evidence is reported to examine carefully the evidence and reach its own decision on the facts, yet the finding of the trial court, where he has the opportunity to see the witnesses, will not be reversed unless plainly wrong. Jennings v. Demmon, 194 Mass. 108, 80 N. E. 471. From a careful examination of the evidence we are satisfied that the finding was right, and it must stand.

‘The plaintiff is entitled to relief only on the ground of unfair trade competition or interference with his established rights. * * * There can be no recovery unless it appears that there has been a wrongful appropriation by the defendants of trade which belonged to the plaintiff. * * * Actual or probable deception of the public to the harm of the plaintiff is the basis of the action. There can be no unfair competition unless the plaintiff is in fact a rival for the trade which the defendants secure.’ Kaufman v. Kaufman, 223 Mass. 104, 106, 107, 111 N. E. 691, 692.

This principle of law is controlling in the case at bar.

The defendants did not...