Jones v. Roshenberger

• Decision Date: 17 October 1924
• Docket Number: 11,970
• Citation: 144 N.E. 858,82 Ind.App. 97
• Parties: JONES ET AL. v. ROSHENBERGER, ADMINISTRATOR
• Court: Indiana Appellate Court

144 N.E. 858

82 Ind.App. 97

JONES ET AL. v. ROSHENBERGER, ADMINISTRATOR

No. 11,970

Court of Appeals of Indiana

October 17, 1924

From Vanderburgh Probate Court; Elmer Q. Lockyear, Judge.

Action by John H. Roshenberger against Clyde M. Jones and others. From a judgment for plaintiff, the defendants appeal. The appellee having died pending the appeal, his administrator was substituted as appellee.

Affirmed.

Edward A. Lorch and Arthur H. Meyer, for appellants.

George K. Denton and Winfield K. Denton, for appellee.

OPINION

ENLOE, C. J.

This was an action for injunction to restrain the appellants from alleged unfair competition, and for damages. The action was prosecuted to judgment by one John H. Roshenberger, who died pending this appeal, and, by agreement of all the parties his administrator has been, by order of this court substituted as appellee.

The questions presented for our consideration relate to the matters hereinafter considered.

There were three paragraphs of complaint, to each of which appellant Jones unsuccessfully demurred, the appellant Rimroth demurring only to the second and third paragraphs. As the said demurrers were each for want of facts, and as the specifications of deficiencies in said complaint cover practically the same ground, we shall consider them together.

In Computing Cheese Cutter Co. v. Dunn (1909), 45 Ind.App. 20, 88 N.E. 93, it was said: "The sufficiency of the pleading under consideration depends upon whether its averments bring the case within the principle that nobody has any right to represent his goods as the goods of somebody else. * * * The question of the right of relief against the infringement of a trade name in a given case depends upon the circumstances surrounding the adoption and advertisement of the name complained of, as much as upon its similarity to that of the complainant. The question in every case is whether the defendant is in fact attempting to sell his goods as the goods of some one else. When this fact is found, a basis for relief is established. The fact is to be found, as other facts, from the evidence, including therein all the relevant circumstances and conditions. Identity of name may not, in itself, be sufficient. A lack of identity in name will not always suffice to prevent the extending of relief to one whose trade is being stolen. 'What degree of resemblance between the names of devices is sufficient to warrant the interference of a court in cases of this kind is not capable of exact definition. It is, and must be, from the very nature of the case, mainly a question of fact, to be determined by the circumstances appearing in each particular case.'" (Our italics.) See Atlas Assurance Co. v. Atlas Ins. Co. (1907), 138 Iowa 228, 112 N.W. 232, 114 N.W. 609, 128 Am. St. 189, and note to the same case 15 L.R.A. (N. S.) 625.

In 38 Cyc 756, it is said: "Unfair competition consists in passing off or attempting to pass off upon the public, * * * the goods or business of another. It consists essentially in the conduct of a trade or business in such a manner that there is either an express or implied representation to that effect. And it may be stated broadly that any conduct, the natural and probable tendency and effect of which is to deceive the public so as to pass off the goods or business of one person as and for that of another, constitutes unfair competition. The definition is comprehensive enough to reach every possible means of effecting the result." See,...