Mobile Transfer Co. v. Schwarz

• Decision Date: 20 January 1916
• Docket Number: 876
• Citation: 195 Ala. 454,70 So. 640
• Parties: MOBILE TRANSFER CO. et al. v. SCHWARZ.
• Court: Alabama Supreme Court

70 So. 640

195 Ala. 454

MOBILE TRANSFER CO. et al. v. SCHWARZ.

No. 876

Supreme Court of Alabama

January 20, 1916

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Bill by Robert C. Schwarz against the Mobile Transfer Company and others. Decree for complainant, and defendants appeal. Affirmed.

Tompkins & Kirkpatrick, of Mobile, for appellants.

Hugh M Caffey, Jr., of Mobile, for appellee.

MAYFIELD J.

The bill is filed by appellee to enjoin appellant from the use of a trade-name so similar to that of appellee as to tend to deceive or mislead the public and to cause it to believe that it is dealing with the complainant, appellee. Appellee's trade-name is "Mobile Transfer," while that of appellant is "Mobile Transfer Company, Inc." There can be no doubt that the similarity of the two names is great enough to lead to such confusion, and to deceive the public by inducing it to deal with the one, when it intended to deal with the other. Both appellant and appellee are engaged, as their names indicate, in the transfer business, and they are therefore serving the traveling public. The evidence showed that confusion as to mail and business had occurred on account of such similarity of the trade-names. The evidence also showed that it was not to the interest of the public that both companies should operate under names so similar one to the other. The evidence showed further that the business of appellee was injured by appellant's use of the similar name.

It is contended by appellant that appellee wrongfully acquired its name by assuming that of an insolvent corporation which was dissolved by the chancery court, that appellee was the receiver of such corporation, and that the assumption of the name of the dissolved corporation by him, when he was or had been receiver of such corporation, was a fraud upon the stockholders thereof, and therefore that appellee does not come into court with clean hands.

Without deciding whether or not appellee had, or had acquired, the right to use the name of the insolvent corporation of which he was receiver, dissolved while he was acting in such capacity, or to use a name similar thereto, it is a sufficient answer to say that appellant does not claim under or through the rights of the dissolved corporation, or through any of its stockholders or creditors. In other words appellant is a stranger to the defunct body corporate, and there is no evidence to show or tending to show that any fraud, wrong, or injury has ever been done or ever will be done the public, or to such stockholders or creditors, by the use of the borrowed name by appellee. Appellee's use of the corporate name, or of a similar name, gives appellant no right to use the business name of appellee. If appellant is wrongfully using appellee's business name, it cannot defend by showing that appellee wrongfully acquired the name from a third pa...