Mozzochi v. Luchs

• Decision Date: 30 November 1977
• Docket Number: No. 190241,190241
• Court: Connecticut Superior Court
• Parties: , 201 U.S.P.Q. 796 Charles J. MOZZOCHI, Administrator (ESTATE of John J. MOZZOCHI) v. John LUCHS, Jr., et al.

Page 738

391 A.2d 738

35 Conn.Supp. 19, 201 U.S.P.Q. 796

Charles J. MOZZOCHI, Administrator (ESTATE of John J. MOZZOCHI) v. John LUCHS, Jr., et al.

No. 190241.

Superior Court of Connecticut, Hartford County.

Nov. 30, 1977.

Marcus, Chester & Schwartz, Hartford, for plaintiff.

Wynne, Pontillo & Lynch, Glastonbury, for defendants.

BIELUCH, Judge.

This matter is before the court upon an amended complaint brought by the plaintiff acting as duly qualified administrator with will annexed (d. b. n., c. t. a.) of the estate of John J. Mozzochi. The amended complaint recites that on or about October 31, 1967, John J. Mozzochi died while he was the principal partner in the partnership known as "John J. Mozzochi And Associates" in which the named defendant was then a partner. The defendant Beckerman entered the partnership subsequent to that date and prior to October 10, 1969.

Marian P. Mozzochi was duly qualified as the executrix of the estate of John J. Mozzochi on or about December 1, 1967, at which time the estate owned an interest in all of the assets of the partnership, including an interest in the good will of the partnership and an interest in the rights to the use of the firm name of the partnership. On October 10, 1969, while acting as executrix of the estate, Marian P. Mozzochi executed a contract with the defendants in which she sold and transferred to them her interest and the estate's interest in the partnership, and in which she consented to the defendants' use of the firm name "Mozzochi Associates" as a modified partnership name for a period of five years from January 1, 1969. In consideration of the estate's consent to the defendants' use of the name for the limited period and in consideration of the estate's agreement to sell its interest in the partnership, the defendants agreed that they would limit the use of the name "Mozzochi Associates" to the five-year period. Although the five-year period has elapsed, the defendants have allegedly continued to use the name "Mozzochi Associates" in connection with their business and professional activities. The plaintiff now seeks damages for an alleged breach of the contract dated October 10, 1969.

The defendants have demurred to the amended complaint on the ground that it does not state a cause of action in favor of the plaintiff. Further, the defendants demur to the claim for damages on the ground that the facts as stated fail to show that the plaintiff is entitled to relief. Specifically, the defendants claim that the plaintiff's amended complaint is fatally defective in that (1) it fails to allege that either the estate of John J. Mozzochi or the plaintiff, as administrator thereof with the will annexed, is carrying on a business or rendering business services which could possibly be or are being injured in any way by the defendants' continued use of the firm name in connection with their business and professional services; (2) it fails to allege that the defendants' continued use of the firm name is deceiving the public into believing that the defendants' services are those of the estate of John J. Mozzochi or of the plaintiff as administrator; (3) it fails to allege that the defendants' continued use of the firm name constitutes "palming off" of the defendants' business or services as being carried on by the estate or by the plaintiff as administrator; (4) it fails to allege facts showing any injury or damage incurred by the estate or by the plaintiff as administrator as a result of the defendants' continued use of the firm name; (5) it fails to allege facts upon which any damages to the plaintiff as administrator of the closed estate could possibly be based as a result of the defendants' continued use of the firm name; and (6) it fails to allege a cause of action in favor of the plaintiff or in favor of the estate on the basis of any valid legal theory.

The use of a family name in business is a personal right. Southern Scrap Material Co. v. Smith, 253 Ala. 356, 358, 44 So.2d 754. While the right of a man to use his name in his own business is not inalienable, it is fundamental. Guth Chocolate Co. v. Guth, 215 F. 750, 766 (D.Md.). The general rule is that a man has the right, sometimes said to be "inherent," to use his surname in business unless he clearly and expressly surrenders that right. Dutcher v. Harker, 377 S.W.2d 140, 144 (Mo.App.) The right to use one's own name in business may be given up by contract, but in the absence of express language to that effect the intention to part with that right will not be presumed. Karsh v. Haiden, 120 Cal.App.2d 75, 82, 260 P.2d 633. It is well settled that the rights of parties with respect to the use of tradenames may be governed or restricted by a contract between them. Brooker v. Brooker, 214 Kan. 89, 96, 519 P.2d 612; 87 C.J.S. Trade-Marks, Trade-Names, and Unfair Competition § 178. The law of contracts generally applies to contracts involving tradenames. Ibid.

Therefore, one may deprive himself of the right to use his name in his own business by contract. Gates v. Gates Coal Co., 114 Pa.Super. 157, 161, 174 A. 3. It is, nevertheless, assumed that no one intends to part with the...