Liquidators v. Clifton
| Citation | 132 Or. 448,286 P. 152,5 U.S.P.Q. 209 |
| Parties | LIQUIDATORS v. CLIFTON. |
| Decision Date | 25 March 1930 |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Jacob Kanzler, Judge.
Suit by the Liquidators, a corporation, against C. Clay Clifton doing business as the Bonded Liquidator Company. From an adverse decree, the defendant appeals.
Reversed and dismissed.
W. C. Campbell and James W. Crawford, both of Portland, for appellant.
Frank H. Reeves, of Portland (Herbert Swett, of Portland, on the brief), for respondent.
This is a suit to enjoin defendant from using the trade-name of Bonded Liquidator Co. upon the grounds: (1) That plaintiff is entitled to the exclusive use of the word, Liquidators, its corporate name, by right of prior adoption; and (2) unfair competition in that defendant's use of such assumed name is for the purpose of misleading and deceiving the public, such similarity having a tendency wrongfully to divert plaintiff's business.
The plaintiff corporation was organized in February, 1927, and ever since has been engaged in the general collection business in the city of Portland. Defendant, who is also engaged in the collection business, has his offices about six blocks distant from plaintiff's place of business. Defendant registered his assumed name with the county clerk of Multnomah county in March, 1928, and has been conducting such business ever since.
Defendant in answer to the suit for injunctive relief, asserts: (1) That "Liquidators" is a generic term descriptive of the character of business in which plaintiff is engaged, and, by reason thereof, may be used by any person without infringement upon such trade-name; and, (2) that there is not such similarity between the two trade names as to result in confusion and unfair competition.
From a decree enjoining the use of "Bonded Liquidators Co.," the defendant appeals.
The vital questions are: Will defendant's use of the trade-name result in unfair competition? Will such use bring about confusion and deprive plaintiff of business which would otherwise come to it? Will the public be deceived and led to believe defendant's business is that of his competitor? If these inquiries be answered in the affirmative, equity may be invoked to prevent such commercial piracy. No man should be permitted to sail under a false flag. On the other hand, a corporation in selecting for a trade-name, a generic term which is descriptive of the business in which it proposes to engage, assumes some risk of injury resulting from confusion of trade-names, since no one can exclusively make such an appropriation. "Liquidators" is a generic term, and it describes the character of business carried on by plaintiff. It is broad and comprehensive enough to include a collection business. There are, no doubt, several hundred firms in the city of Portland whose business is to liquidate or collect accounts. Why should one company be permitted thus to monopolize a trade-name of such character? If an exclusive appropriation can thus be made, then, with like reason, there might be a monopoly in the use of such names as "Adjusters," "Printers," and "Lawyers." The rule is thus...
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