Messer v. The Fadettes

• Decision Date: 05 March 1897
• Citation: 46 N.E. 407,168 Mass. 140
• Parties: MESSER v. “THE FADETTES” et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 140

46 N.E. 407

MESSER

v.“THE FADETTES” et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1897.

Appeal from superior court, Suffolk county; Henry K. Braley, Judge.

Suit by Mary E. Messer against “The Fadettes” and others for an injunction. From a decree dismissing the bill, plaintiff appeals. Affirmed.

R.W. & C.F. Light, for appellant.

Thomas J. Barry, for appellees.

KNOWLTON, J.

Ethel Atwood organized and employed a band of musicians called the “Fadette Ladies Orchestra,” and hired and paid the members of it. She sold to the plaintiff all her “right, title, and interest in and to the organization known as the ‘Fadette Ladies Orchestra,’ *** together with all right acquired in the establishment, name, and trademark in the words ‘Fadette Ladies Orchestra,’ ” and then ceased to have any connection with the company. The other members of the orchestra were not parties to the contract, and did not agree to continue to play under the direction or management of the plaintiff. At the time when the plaintiff brought this suit, no member of the original organization remained with her. The question is whether the plaintiff acquired a right in the trade-mark or trade-name which she can enforce by way of injunction against the defendant corporation, some of the members of which were members of the original organization. It is very clear that this question must be answered in the negative. So far as Ethel Atwood had any right or ownership in the trade-name which designated the organization under her management, it was personal to herself, depending upon her personal reputation and skill, and it was not assignable. The other musicians employed by her could not, by her contract of sale, be put in the control of any other person, and there was nothing in her relation to them that she could convey. The case is not like those in which there is a sale of fixed property and a local business to which the name belongs, and whose principal features remain unchanged after the sale. If the use by the plaintiff of the name “Fadette Ladies Orchestra” would have any influence beneficial to herself upon the public who wished to procure the services of such an organization, it would be only to mislead and defraud them by implying that she and such musicians as she employed were the same persons who had formerly gained a good reputation under this name. It is well settled that the courts will not enforce a claim of this kind, which contains a misrepresentation to the public. Hoxie v. Chaney, 143 Mass. 592, 10 N.E. 713;Connell v. Reed, 128 Mass. 477;Chadwick v. Covell, 151 Mass. 190-194, 23 N.E. 1068;Weener v. Brayton, 152 Mass. 101, 25, N.E. 46;Covell v. Chadwick, 153 Mass. 263-267, 26 N.E. 856;Medicine Co. v. Wood, 108 U.S. 218, 2 Sup.Ct. 436. Decree affirmed.

LATHROP, J. (dissenting).

I am unable to agree to the opinion of the majority of the court. It proceeds upon the ground that the name adopted by Ethel Atwood for the orchestra organized by her was not assignable, for the reason that it was personal to herself, and depended upon her personal reputation and skill. The court below has found that the success of the orchestra “was due to the ability, skill, and personal supervision of said Atwood.” It follows, then, if the decision of the majority of the court is correct, that, if a business is conducted under a trade-name, the more the ability, skill, and personal supervision of the owner of the business conduces to its success, the less is the trade-name assignable with the business. I think that this is not in accordance with sound principles or with the authorities. The opinion of the majority appears to be founded upon a view of the law which is sound within certain limitations, namely, that, where the trade-mark is that of the proprietor of the business, it cannot be sold apart from the business, on the ground that it means to the public that the personal skill of a particular individual is exercised in the manufacture or selection of the goods upon which it is used. So far as the cases cited in the opinion of the majority seem to...