Lininger v. Desert Lodge, a Corp.
| Decision Date | 14 July 1945 |
| Docket Number | Civil 4664 |
| Citation | 67 U.S.P.Q. 36,160 P.2d 761,63 Ariz. 239 |
| Parties | HOMER D. LININGER, Doing Business as, and Under the Name of, THE LODGE ON THE DESERT, Appellant, v. DESERT LODGE, a Corporation, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Pima. Arthur T. LaPrade, Judge.
Judgment affirmed.
Mr John W. Ross, for Appellant.
Messrs Misbaugh and Fickett, and Mr. William S. Dunipace, for Appellee.
Walsh Superior Judge. Stanford, C. J., and Morgan, J., concur. LaPrade, J., being disqualified, James A. Walsh, Superior Judge, was called to sit in his stead.
Appellant, plaintiff below, brought this action to restrain appellee from using in connection with its business the name "Desert Lodge," and for damages. The cause was tried to the Court, resulting in a judgment denying appellant relief and dismissing the action, from which judgment appellant prosecutes this appeal.
The evidence adduced by the parties upon the trial of the cause may be summarized as follows:
Since June, 1935, appellant has been operating on the eastern outskirts of Tucson, a resort hotel, carrying on such business under the name, "The Lodge on the Desert." Appellant's premises are not located upon any through or transcontinental highway and, in so far as buildings are concerned, consist of a main building, a dining hall and a number of cottages. The business is open only during the winter months, viz.: from September 15th to May 15th, and is operated solely on the American plan, that is, for a single, stipulated rate or price both meals and lodging are furnished to guests. The rates charged by appellant are, for a single person, $ 10 per day and up, and for two persons, $ 18 per day and up.
In developing patronage for his business, appellant endeavors to reach prospective guests at their home localities and there interest them in Arizona in general and in "The Lodge on the Desert" in particular. To that end, while he does almost no local advertising of his business, he has carried on an extensive campaign of national advertising. His business is listed with and advertised by very many tourist agencies over the country, such advertising specifying the plan upon which the hotel is operated and the rates charged for accommodations. During the summer months, when the hotel is closed, appellant travels over the United States, and even in Europe, promoting business for his institution by visiting the larger tourist agencies, lecturing and showing moving and still pictures to tourist and service clubs, and personally contacting former patrons and others who have evidenced interest in becoming patrons of his business.
Subsequent to the institution of this action, and because of conditions brought about by the war, appellant modified the usual conduct of his business by discontinuing the service of meals to guests, closing his dining room and installing kitchenettes in some of his rooms. However, the alteration is admittedly but temporary and it is appellant's intention, just as promptly as conditions will permit, to return to the normal operation of his business as an American plan resort hotel.
Appellee operates an automobile or tourist court under the name "Desert Lodge," about two miles south of Tucson on that part of a transcontinental highway, U. S. 80, which is known locally as the Tucson-Benson Highway. Prior to August, 1941, when it was purchased by the parties who comprise appellee's present stockholders, the court was owned and operated under the name "Chief Motel." Immediately following completion of the purchase, however, such stockholders incorporated under the name "El Chief Rancho," and carried on the business under that name until December, 1941, when the articles of incorporation were amended to change appellee's corporate name to "Desert Lodge." Appellee's business has been since conducted under the corporate name.
Appellee's tourist court consists of 14 cottages or cabins erected upon its premises and its principal source of patronage is from tourists who are upon the highway and who desire lodging accommodations over night, though some guests do remain for more extended periods of time. Appellee serves no meals to its guests, but some of its cottages are equipped with kitchenettes for the accommodation of those desiring to prepare their own meals upon the premises. The business is open the year round and the rates are $ 3 to $ 5 per day. Appellee does no national advertising and, in fact, up to the time of the filing of this action, did no advertising whatever except to erect a sign bearing its name at its place of business. While the suit was pending, appellee did run some advertisements in the Tucson daily papers for a period of about two months.
"Desert Lodge" was chosen by appellee as its corporate name and as its business name because of the location of its business on the edge of the desert; and while appellee's managing officers, prior to adopting its name, had heard of a business at Tucson operating under the name "The Lodge on the Desert," they had no purpose or intention of confusing the public or attempting to attract patrons or prospective patrons of "The Lodge on the Desert."
Up to the time of the trial, on January 30, 1943, there had occurred no instance in which a person transacted business with either appellant or appellee when he believed he was dealing with the other. In the fourteen-month period between the adoption of the name "Desert Lodge" by appellee and the trial, a few telephone calls were received by appellant which were apparently intended for guests at appellee's court, and, during the same period of time, packages, letters and telegrams had been brought to appellant's place of business when addressed to guests at "Desert Lodge," such misdeliveries averaging about two per month. With regard to such misdeliveries, however, appellant has at no time attempted to prevent a recurrence of the misunderstanding by apprising the messengers or deliverymen of the existence of appellee's place of business. Appellee, on its part, has experienced no confusion on account of the similarity between its name and that of appellant; it has received no telephone calls intended for appellant or his guests and there has been no misdelivery to it of packages, mail or telegrams.
In the preparation of the 1942 edition of "Lodging For A Night," a popular directory of hotels, inns and automobile courts published by one Duncan Hines for the use of the travelling public, the similarity of the names used by appellant and appellee apparently led the publisher's staff to. assume that there was some connection in the management or operation of the two businesses, with the result that both are listed in the same paragraph in the space devoted to describing accommodations available to travellers at Tucson. No information furnished to the publisher by either appellant or appellee caused the assumption to be made; and, apart from the fact that both businesses are listed in the same paragraph, the publication clearly specifies that the businesses are in different locations, that they offer different types of accommodations, that they operate upon different plans, that is, American and European, and that appellant's rates are $ 18 per day and up, while appellee's are from $ 3 to $ 5 per day.
In its amended answer filed in the court below, appellee set up the fact that following the institution of the suit by appellant, it had altered the sign located at its place of business by adding thereto the word, "Nanini's" so that it then read "Nanini's Desert Lodge," instead of "Desert Lodge" as theretofore. Upon the trial, appellee offered evidence of this fact, as well as evidence to the effect that at the time of trial it was using the name "Nanini's Desert Lodge" on notices posted in its cottages for the attention of guests and on stationery and other supplies furnished to guests as a part of appellee's service. Appellee's manager testified that this action had been taken and that the business was thenceforth to be conducted under the name "Nanini's Desert Lodge," not because appellee had ever infringed or intended to infringe upon the business of appellant, but solely in an effort to satisfy appellant.
From the foregoing evidence, the trial court made, among others, the following specific findings of fact:
To continue reading
Request your trial
-
Joshua David Mellberg LLC v. Will
...of the issue and cites a single Arizona Supreme Court opinion, from 1945. See Sutter Home, 971 F.2d at 407 (citing Lininger v. Desert Lodge, 63 Ariz. 239, 160 P.2d 761 (1945) ). They contend that since Desert Lodge, the Arizona Supreme Court has twice held that “the universal test [for unfa......
-
Senner v. Bank of Douglas
...of each bank, the extent of competition between them and the possibility of confusion to the public. See also, Lininger v. Desert Lodge, 63 Ariz. 239, 160 P.2d 761; Boice v. Stevenson, 66 Ariz. 308, 187 P.2d A similar hearing may be necessary in the instant case to resolve, on the basis of ......
-
ACT Grp. Inc. v. Hamlin
...rental companies operated in close proximity with each other and plaintiff produced evidence of confusion) with Liniger v. Desert Lodge, 63 Ariz. 239, 160 P.2d 761, 764 (1945) (finding no unfair competition when similarly-named and closely-located tourist lodgings competed but no evidence o......
-
King Realty, Inc. v. Grantwood Cemeteries, Inc.
...and not in conflict with the express findings. In re Adoption of Holman, 80 Ariz. 201, 295 P.2d 372 (1956); Lininger v. Desert Lodge, 63 Ariz. 239, 160 P.2d 761 (1945). We first look at the argument (not supported by a formal assignment of error or question for review) that hte Court erred ......
-
THE ROLE OF "COMMERCIAL MORALITY" IN TRADE SECRET DOCTRINE.
...313 (W.D. Tenn. 1963); Atl. Monthly Co. v. Frederick Ungar Publ'g Co., 197 F. Supp. 524, 525 (S.D.N.Y. 1961); Lininger v. Desert Lodge, 160 P.2d 761, 762-63 (Ariz. 1945). (97) See, e.g., J.C. Penney Co. v. H.D. Lee Mercantile Co., 120 F.2d 949, 957 (8th Cir. 1941); KJ Korea, Inc. v. Health ......