Mann v. Parkway Motor Sales

• Decision Date: 06 April 1949
• Citation: 81 U.S.P.Q. 264,85 N.E.2d 210,324 Mass. 151
• Parties: CLIFFORD O. MANN v. PARKWAY MOTOR SALES, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 151

85 N.E.2d 210, 81 U.S.P.Q. 264

CLIFFORD O. MANN v. PARKWAY MOTOR SALES, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1949

November 5, 1948.

Present: QUA, C.

J., RONAN, WILKINS SPALDING, & WILLIAMS, JJ.

Unlawful Interference. Unfair Competition. Trade Name. One carrying on a business on Revere Beach Parkway in Revere under the name

"Parkway Garage" must prove that the word "Parkway," a word in common usage, had acquired a secondary meaning as designating his place of business in order to maintain a suit in equity to enjoin a subsequently established proprietor competing within an eighth of a mile from carrying on business under any name containing the word "Parkway."

A decree dismissing the bill in a suit in equity, by one doing business in the sale, repair and servicing of automobiles on Revere Beach Parkway in

Revere under the name "Parkway Garage" to enjoin a subsequently established proprietor competing within an eighth of a mile from carrying on business under any name containing the word "Parkway," was affirmed where the evidence was not reported and the trial judge made a finding, which he stated was made "upon all the evidence" and which was consistent with his subsidiary findings, that "Parkway," a word in common usage, had not acquired a secondary meaning as designating the plaintiff's place of business; the plaintiff's rights were not enlarged by G. L. (Ter. Ed.) c. 110, Section 7A, inserted by St. 1947, c 307.

BILL IN EQUITY filed in the Superior Court on August 28, 1947. The suit was heard by Murray, J.

W. Hadgi, for the plaintiff.

J. S. Graham, (W.

J. Cusick with him,) for the defendant.

WILKINS, J. The plaintiff, under the name of Parkway Garage, is engaged in the business of repairing, servicing, and selling automobiles at a garage and showroom at 725-729 Revere Beach Parkway Revere. The defendant is engaged in a similar business at 600 Revere Beach Parkway, Revere, within an eighth of a mile of the plaintiff's place of business. This is a bill in equity to enjoin the defendant from carrying on business under any name containing the word "Parkway," and for damages and other relief. From a final decree dismissing the bill, the plaintiff appeals.

The Revere Beach Parkway, commonly known as the "Parkway" in Revere, is a well travelled broad highway running through Revere and adjoining municipalities. Since 1917 the plaintiff has conducted business under his own name and under the name of "Parkway Garage," and a sign bearing the latter name has since that date been attached to the building used by him. In 1932 there were added the names "De Soto Plymouth," two makes of automobiles for which the plaintiff is an authorized dealer. Since prior to 1932 the plaintiff has enjoyed in Revere a valuable business reputation for fair dealing in the business of servicing and repairing automobiles and as a skilled mechanic in the repair of automobiles, and since 1932 in the sale and service of the two makes of automobiles. Most of the plaintiff's customers reside, and most of his business has been transacted with persons who reside, in Revere and vicinity. This valuable business reputation "in that area" is identified in the minds of "many of his customers and others" with his own individual name, but "in the minds of other persons in the same area" his place of business and valuable business reputation are known and identified under the name "Parkway Garage."

In September, 1946, the defendant commenced the construction of a building to contain a salesroom, gasoline station, and garage for the repair and servicing of automobiles. During the construction the defendant maintained near the building a sign bearing the legend "New Home of Parkway Motor Sales, Inc. Your new Dodge Plymouth Dealer." The defendant was incorporated in this Commonwealth in June, 1946. Prior to March, 1947, it had never been engaged in business in Revere or elsewhere, but since that date it has engaged in business as a dealer and in servicing and repairing automobiles. It has sent advertising matter to about one thousand persons in Revere and vicinity, including at least one customer of the plaintiff, and has advertised in newspapers.

Although the defendant knew prior to engaging in business that the plaintiff was conducting his business under the name "Parkway Garage," it did not knowingly mail advertising matter to the plaintiff's customers or intend by its advertising or method of doing business to lead the plaintiff's customers or the public generally to believe that the business of the defendant was the business of the plaintiff, or thus intend to appropriate the plaintiff's business or to trade upon the name and reputation of the plaintiff. The instances of confusion occurring in the misdelivery to the plaintiff of packages and invoices intended for the defendant and in the misdirection to the plaintiff of telephone calls intended for the defendant were due to errors arising from the fact that both parties were engaged in the automobile business in locations not far apart on the Revere Beach Parkway, each using the word "Parkway" in the names under which the businesses were conducted.

There is no similarity in appearance in the respective buildings, the arrangement of the approaches, or in the manner or method of display of signs. There is no similarity in the words used in any signs except "Plymouth" and "Parkway." The appearance and general arrangement of the defendant's building and surroundings and its method of doing business are so distinguished from those of the plaintiff and his place of business that a reasonably careful and intelligent person would not be misled into believing that the defendant's place of business was that of the plaintiff.

The parties are competitors for the sale of Plymouth automobiles and for the servicing and repairing of motor vehicles in Revere and adjoining municipalities. Neither sells any product on which the word "Parkway" is marked or provides any service designated by that word. The word "Parkway" is in common use in English speech. In its primary meaning it denotes a broad highway improved or beautified with trees or shrubs and grass plots. It is common knowledge that there have been for many years several parkways in Metropolitan Boston. Along the Revere Beach Parkway there are...