Loew's Boston Theatres Co. v. Lowe

• Citation: 248 Mass. 456,143 N.E. 496
• Parties: LOEW'S BOSTON THEATRES CO. et al. v. LOWE et al.
• Decision Date: 09 April 1924
• Court: United States State Supreme Judicial Court of Massachusetts

248 Mass. 456

143 N.E. 496

LOEW'S BOSTON THEATRES CO. et al.

v.LOWE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 9, 1924.

Appeal from Superior Court, Suffolk County; J. D. McLaughlin, Judge.

Bill by Loew's Boston Theatres Company and others against Elias M. Lowe and others to restrain defendants from operating a theatre under the name of E. M. Loew's Theatre or in such way as to confuse it in the mind of the public with plaintiffs' theatre. From the decree, plaintiffs appeal. Affirmed.

W. A. Rollins, of Boston, for appellants.

H. E. Miller, of Lynn, for appellees.

DE COURCY, J.

As summarized by the trial judge, this bill was brought to restrain the defendants from operating a certain theater in that part of Boston called Roxbury under the name of E. M. Loew's Theatre, or in such a way as to confuse it in the mind of the public with the plaintiffs' theatres; from conducting the theatre business under the name of Loew, and from assuming the name of Marcus Loew in connection with any theatrical business or production. A decree was entered which disposes of the complaints against the theatre in Roxbury, and against the defendants Andrian and Zetes. The only appeal taken was by the plaintiffs: And this was because the decree did not enjoin the defendant Lowe from ‘changing his name into E. M. Loew’; ‘from doing business as E. M. Loew, and from assuming the name Marcus Loew’; and ‘because it does not dispose of all the issues raised by the bill.’

What the plaintiffs actually seek is to prevent the defendant Elias M. Lowe (hereinafter referred to as the defendant) from carrying on theatrical business anywhere under, or in connection with, the name Loew's. Before considering whether the decree should be so broadened, it is necessary to refer to some of the pertinent facts as found by the trial judge. The defendant was born in Roumania. He was christened Elias Low, which in the place of his birth was pronounced substantially Luev or Lurvre, and would have justified the spelling Loew. He came to the United States in 1911, when thirteen years of age, and entered the theatrical business in 1917. Since 1916 he has used the spelling Low or Lowe in several documents; and after he was fairly launched in the moving picture business he adopted the middle initial ‘M,’ and spelled his surname ‘Loew.’ He became owner of a theatre at Lynn in 1918; in 1919 bought the one in Roxbury, and has since bought theatres, or an interest therein, at Portland, Lawrence and Fitchburg. In 1921 he formed a Massachusetts corporation, known as E. M. Loew's, Inc., the purpose of which was to buy and sell theatres. The word ‘Loew’ is not used in connection with his theatres in Lynn, Lawrence or Portland. The one in Fitchburg is operated and advertised as ‘E. M. Loes's Majestic.’

The plaintiff Marcus Loew, either individually or by means of corporations, for seventeen years has been conducting theatrical business under the name Loew's, throughout the United States and Canada. This chain of theatres is well advertised; and the name ‘Loew's Theatres,’ and the kind and quality of entertainment which they provide have become well known. None of the plaintiffs, however, owns or operates a theatre in Lynn, Lawrence, Portland or Fitchburg, where the defendant's theatres are. The trial judge found that in said cities where the plaintiffs have no theatres, there was no competition between the parties, no wrongful appropriation of trade or good will by ...