Lozier v. Kline

• Decision Date: 12 December 1973
• Citation: 69 O.O.2d 261,319 N.E.2d 204,40 Ohio App.2d 277
• Parties: , 184 U.S.P.Q. 369, 69 O.O.2d 261 LOZIER, d. b. a. Cadallic Custom Campers, Appellant/Cross-Appellee, v. KLINE et al., Appellees/Cross-Appellant.
• Court: Ohio Court of Appeals

Page 277

40 Ohio App.2d 277

319 N.E.2d 204, 184 U.S.P.Q. 369, 69 O.O.2d 261

LOZIER, d. b. a. Cadallic Custom Campers, Appellant/Cross-Appellee, v. KLINE et al., Appellees/Cross-Appellant.

Court of Appeals of Ohio, Ninth District, Wayne County.

Dec. 12, 1973.

Syllabus by the Court

While a state may not prohibit the reproduction and sale by another of articles on the open market, it may require that those who make and sell copies take whatever precautions are necessary to identify such copies as their own, where the possibility exists that purchasers might mistake the copy for the original product.

Mack D. Cook II, Akron, and William H. H. Wertz, Wooster, for appellant.

Charles A. Kennedy, Wooster, for appellees.

VICTOR, Judge.

This appeal is from an order of the Court of Common Pleas of Wayne County wherein that court denied plaintiff, the appellant and cross appellee, a permanent injunction, and other relief.

Plaintiff, A. L. Lozier, who does business as Cadallic Custom Campers, filed suit against Norman Kline and David L. Kline, the appellees and cross appellants. In his complaint he alleges, in substance, that:

'(1) Since Aughst of 1969, he has manufactured and sold caps and covers for the rear bed or platform of vehicles such as pickup trucks;

'(2) Those products are of 'unique construction, shape, design, nonfunctional trim and color, so as to present a physical appearance to the ordinary purchaser essential to commercial success,' and that the physical appearance acquired a secondary meaning, that Lozier is the manufacturer of the product '(3) Norman Kline obtained one of Lozier's caps or covers, known as the 'Trimline Series,' for use as a model and he and David L. Kline have manufactured, and offered for sale within Ohio, an article which is a copy of Lozier's product;

'(4) Said acts constitute an appropriation of the product designed by Lozier and are an act of unfair competition, thereby unlawfully appropriating Lozier's property rights;

'(5) Said acts constitute a deceptive trade practice, within the purview of R.C. 4165.02, by (the defendants)

'(a) passing off their cap and cover products as those of plaintiff; or

'(b) causing likelihood of confusion or misunderstanding as to the source, sponsorship, approval or certification of cap and cover products; or

'(c) representing that their cap and cover products are of a particular standard, quality or grade which has gained public acceptance because of the plaintiff (Lozier).'

Plaintiff demanded judgment against the defendants:

'1. That they be restrained during the pendency of this action, and permanently, whether through agents, servants, employees, or representatives, or through persons acting in privity or concent from:

'(a) Manufacturing, selling, advertising, or distributing any cap or cover product having the physical appearance of plaintiff's products;

'(b) using any cap or cover product manufactured by plaintiff as a pattern or model for designing and manufacturing such products;

'(c) using the name 'Cadallic Custom Campers' in connection with the promotion or sale of any cap and cover product which they manufacture;

'(d) engaging in any acts, or making any representations which have the effect of leading the public to believe that cap and cover products manufactured and sold by defendants are connected with or related to products manufactured or sold by plaintiff, or to 'Cadallic Custom Campers."

Plaintiff further asked for damages, an accounting, and other equitable relief.

The Klines denied all material allegations and further answered that Lozier's suit was groundless, that he knew it to be such and, pursuant to R.C. 4165.03, prayed for attorney fees.

The trial judge made the following findings of fact and conclusions of law.

'Findings of Fact.

'1. Plaintiff, A. L. Lozier, is doing business as Cadallic Custom Campers at West Salem, Wayne County, Ohio, and, since 1969, has been manufacturing and selling caps and covers, including one designated as 'Trimline Series,' for installation on the rear beds of pickup trucks.

'2. The 'Trimline Series' cap and cover, as it presently appears, was developed in the time period March, 1969, through August, 1969, by Lozier and a Mr. Baker.

'3. The plaintiff has not applied for a patent with respect to his cap and cover product and holds no registered trade marks or copyrights with respect thereto.

'4. Defendant, David Kline, in April, 1971, purchased from plaintiff a 'Trimline Series' cap and cover.

'5. Defendant, Norman Kline, in October, 1971, commenced manufacturing caps and covers for the rear bed or platform of motor vehicles such as pickup trucks and such product in general appearance looked like the 'Trimline Series' product of the plaintiff.

'6. In November, 1971, Norman Kline placed on consignment with Village Motors, Inc., Millersburng, Ohio, two caps and covers for purpose of sale to consumers, and he told Richard Steimel, president of the Village Motors, Inc., that he, Norman Kline, had manufactured the caps and covers.

'7. The agents of Village Motors, Inc., represented to the public that the caps and covers were the product of Norman Kline.

'8. Plaintiff saw the caps and covers manufactured by Norman Kline at the business location of Village Motors, Inc., and represented himself to be a potential purchaser and was advised by agents of village Motors, Inc., that the product was manufactured by Norman Kline.

'9. The materials and supplies that are used by both plaintiff and defendant, Norman Kline, in the manufacturing of their products can be purchased on the open market by anyone, and some of the materials are purchased by both parties from the same suppliers.

'10. Defendant, Norman Kline, used no identifying trade name or mark on his product.

'11. Plaintiff always used the trade name 'Cadallic Custom Camper' plainly visible on his product.'

'Conclusions of Law.

'1. Plaintiff's evidence fails to show that, within the meaning and purview of O.R.C. 4165.02(A), the defendant, Norman Kline, passed off or attempted to pass off his products as those of the plaintiff nor that he deceived or attempted to deceive the public by 'palming off.'

'2. Plaintiff's evidence fails to show that, within the meaning and purview of O.R.C. 4165.02(C), the placing on consignment of cap and cover products manufactured by defendant, Norman Kline, has caused a likelihood of confusion, or misunderstanding as to affiliation, connection or association with plaintiff and Cadallic Custom Campers.

'3. The defendant David Kline, committed no acts having a wrongful purpose within the meaning and purview of R.C. 4165.01, et seq.

'4. The plaintiff is not entitled to injunctive relief against the defendants or either of them'

'The preliminary injunction issued by the Court against the defendants on December 6, 1971, is vacated and discharged.

'Further a permanent injunction against the defendants is denied, an the further relief requested by plaintiff against the defendant is denied.

'5. This action was brought by plaintiff under O.R.C. Chapter 4165, an untried law effective September 25, 1969. The evidence fails to show that the plaintiff knew his action to be groundless, and for this reason the defendants are not entitled to an award for attorney fees or other expenses.'

Lozier disputes only finding of fact No. 7, and conclusions of law 1, 2, and 4.

Insisting that he is entitled to judgment, Lozier says that the trial court erred in the following respects:

'1. The trial court erred in finding that the plaintiff's evidence failed to show that, within the meaning and purview of R.C. 4165.02(A), the defendant, Norman Kline, had passed off or attempted to pass off his products as those of the plaintiff, and that he deceived or attempted to deceive the public by 'palming off.'

'2. The trial court erred in finding that the plaintiff's evidence failed to show that, within the meaning and purview of R.C. 4165.02(C), the placing on consignment of cap and cover products manufactured by defendant, Norman Kline, has caused a likelihood of confusion, or misunderstanding as to affiliation, connection or association with plaintiff, Cadallic Custom Campers.

'3. The trial court erred in concluding that the plaintiff is not entitled to injunctive relief against the defendant, Norman Kline.

'4. The trial court erred in vacating and discharging the preliminary injunction issued by the court against the defendant, Norman Kline, on December 6, 1971.

'5. The judgment of the trial court is contrary to law and is not sustained by the weight of the evidence.'

The defendants, Norman L. Kline and David L. Kline, filed a cross-appeal asserting that the trial court erred: 'in finding that the defendants were not entitled to an award for attorney fees, or other expenses, under the provisions of Section 4165.03.'

Since Lozier disputes only finding of fact number 7, the judgment is affirmed in its entirety as to David Kline.

R.C. 4165.02 provides inter alia that:

'A person engages in a deceptive trade practice when, in the course of his business * * * he:

(A) Passes Off goods or services as those of another;

(B) * * *

(C) Causes likelihood of confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another. * * *' There is no...