Jenney Mfg. Co. v. Leader Filling Stations Corp.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: PIERCE
• Citation: 291 Mass. 394,196 N.E. 852
• Decision Date: 27 June 1935
• Parties: JENNEY MFG. CO. v. LEADER FILLING STATIONS CORPORATION.

291 Mass. 394
196 N.E. 852

JENNEY MFG. CO.
v.
LEADER FILLING STATIONS CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

June 27, 1935.

Suit in equity in the superior court to enjoin the infringement of a trade-name by the Jenney Manufacturing Company against the Leader Filling Stations Corporation, wherein defendant filed a counterclaim. From adverse interlocutory and final decrees, defendant appeals.

Decrees affirmed.

Appeal from [291 Mass. 394]Superior Court, Suffolk County; Weed, Judge.
C. J. Goldman, of Lynn, for appellant.

F. L. Norton and M. Jenney, both of Boston, for appellee.

PIERCE, Justice.

This is a suit in equity brought by the plaintiff against the defendant to establish the plaintiff's exclusive right to use the word ‘Aero’ as a trade-name in the manufacture,

[196 N.E. 853]

sale and distribution of gasoline, and to restrain the defendant from using that word. The defendant by counterclaim seeks to establish for itself an exclusive right to the use of said name and to restrain the plaintiff [291 Mass. 395]from using the same word. The defendant seeks a restraining order and damages; the plaintiff seeks a restraining order only. The case was referred to a master who was directed to report his findings of fact upon all issues raised by the pleadings except the issue of damages. The master filed a report to which the defendant filed twelve objections and a motion to recommit. The judge ordered a recommittal to the master ‘without hearing further evidence, to append to his report a brief, accurate and fair summary of the evidence which relates to the findings appearing as being numbered three, four, seven and ten in the Defendant's Objections to Master's Report.’ The master made a ‘Report of Re-commitment,’ and an interlocutory decree was entered, wherein the defendant's first, second and sixth objections to the master's original report were sustained, the remaining objections were overruled, and the report as modified and the ‘Report of Commitment’ were confirmed. The defendant appealed from the interlocutory decree. Thereafter the case was heard upon the master's report as modified and his ‘Report of Re-commitment’ and a final decree was entered dismissing the defendant's counterclaim, establishing the plaintiff's right to the trade name ‘Aero’ as prayed for, and perpetually enjoining the defendant from using the word ‘Aero’ alone or in conjunction with other words in connection with gasoline, and from so using any other words or combination of words in imitation thereof throughout the states of Maine, New Hampshire, Massachusetts and Rhode Island. From this decree the defendant appealed.

The pertinent facts of the master's report and recommittal report are as follows: One Burwen began a gasoline and oil business in 1916, distributing the same at a filling station or stations. In 1919 he entered into a copartnership with one Milhendler under the firm name Leader Oil Company. In 1924 the defendant corporation was organized and it purchased all the assets of the partnership including its good will. Burwen, the defendant's predecessor, used and was the first to use the word ‘Aero’ as applied to gasoline, but did not use ‘Aero’ exclusively or rely entirely[291 Mass. 396]upon the word ‘Aero’ as being applied to the high grade gasoline he was marketing, and he did not intend when he first began to use it, in 1921, to appropriate the name ‘Aero’ or ‘Aero gasoline’ as a trade-name. In November, 1921, the Leader Oil Company advertised the sale of one type of high powered gasoline under three names-‘Aeroplane gasoline,’ ‘Aviation gasoline’ and ‘Aero gasoline.’ Burwen and the defendant, after its incorporation in 1924, continued to sell the same type of gasoline under the three names until 1927, when the company abandoned the use of the two alternative names reserving that of ‘Aero’ to apply to such gasoline as it offered the public. The plaintiff corporation is and has been a manufacturer, distributor and dealer in gasoline, motor oils, fuel oils and other petroleum products for more than thirty-five years, selling such products at wholesale and retail...