Libby, McNeill & Libby v. Libby

• Decision Date: 14 April 1922
• Citation: 241 Mass. 239,135 N.E. 120
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LIBBY, McNEILL & LIBBY v. LIBBY.

241 Mass. 239

135 N.E. 120

LIBBY, McNEILL & LIBBY

v.LIBBY.

Supreme Judicial Court of Massachusetts, Suffolk.

April 14, 1922.

Appeal from Supreme Judicial Court, Suffolk County.

Suit by Libby, McNeill & Libby against Samuel Libby, doing business as Libby & Libby Company of Massachusetts. From interlocutory and final decrees in favor of defendant, plaintiff appeals. Affirmed.

The bill prayed for an injunction restraining defendant from using the name ‘Libby & Libby Company,’ or any like name, and from using the name ‘Libby,’ whether or not accompanied by other words or initials, in connection with the sale of meats or like merchandise, and from doing any act or thing likely to induce the belief that defendant's business was plaintiff's, or in any way connected therewith. The case was heard by a master, and the material parts of his report are quoted in the opinion. Plaintiff moved on the report for a final decree perpetually enjoining defendant. The court denied the motion, overruled plaintiff's exceptions to the report, and confirmed the report.Edward S. Rogers, of Chicago, Ill., and Frederick H. Nash, of Boston, for plaintiff.

Wm. J. Drew and Arthur Thad Smith, both of Boston, for defendant.

DE COURCY, J.

This bill in equity was brought to restrain alleged unfair competition in trade. The case is here on the plaintiff's appeals from interlocutory decrees overruling its exceptions to the master's report, confirming the report, and denying a motion for an injunction, and from the final decree dismissing the bill.

Up to 1920 the defendant, while carrying on business alone, did so under his name ‘Samuel Lipsky,’ or ‘Lipsky & Co.’ On his application to the probate court duly made and published under R. L. c. 154, § 12, his name was changed to ‘Samuel Libby’ in February, 1920; and in May he changed the name under which he was doing business to ‘Libby & Libby Company of Massachusetts.’ The plaintiff, in support of its motion for an injunction, relies upon the numerous cases where courts have enjoined a competitor from fraudulently putting on the semblance of somebody else, for the purpose of passing off his goods as the goods of that other person. Samuels v. Spitzer, 177 Mass. 226, 58 N. E. 693; Poiret v. Jules Poiret Ld. and A. F. Nash, 37 R. P. C. 177 (1920); Wotherspoon v. Currie, L. R. 5 H. L. 508; Valantine Meat Juice Co. v. Valentine Extract Co. Ld., 17 R. P. C. 673; Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490,27 L. R. A. 42, 43 Am. St. Rep. 769;Herring-Hall-Marvin Safe Co. v. Hall's Safe Co., 208 U. S. 554, 28 Sup. Ct. 350, 52 L. Ed. 616.

The adoption by the defendant of ‘Libby & Libby Company of Massachusetts' rather than ‘Samuel Libby’ as the style under which to conduct his business, standing alone, might well raise a suspicion that his real intent was to infringe on the plaintiff's proprietary rights. But the record discloses much more. The master, who heard the witnesses, and whose findings of fact we must accept unless they are plainly wrong, specifically finds:

‘The defendant believed that it would help his business if he adopted an American name, and he chose ‘Libby’ partly because it closely resembled ‘Lipsky’ and partly because it was a name carrying prestige in the meat business. I do not find, however, that he chose the name ‘Libby’ with intent to obtain trade by leading the public to believe that, when dealing with him, they were dealing with the plaintiff, or that he adopted the designation of ‘Libby & Libby Company of Massachusetts' with that object. I am disposed to accept the defendant's explanation that he wished to do business under the name of ‘Libby & Libby Company’ in order to give the impression that the business was growing and that he added the words ‘of Massachusetts' so as to meet a possible contention that he was holding out his business as that of the plaintiff.’

He also found:

‘Shortly after the defendant began to do business under the name of ‘Libby & Libby Company of Massachusetts' the plaintiff learned of the fact and began an investigation into the character of the defendant's business. So far as appears, however, this investigation did not disclose that the defendant was getting any trade away from the plaintiff through the use of the name or was in any other way causing appreciable damage to the plaintiff. Neither is it shown that the defendant has in any way attempted to pass his business off as or for the business of the plaintiff, except as the use of the...