National Shoe Corp. v. National Shoe Mfg. Co.
| Decision Date | 01 March 1939 |
| Citation | 19 N.E.2d 734,41 U.S.P.Q. 153,302 Mass. 449 |
| Parties | NATIONAL SHOE CORPORATION v. NATIONAL SHOE MANUFACTURING CO. INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 5, 1939.
Present: FIELD, C.
J., DONAHUE LUMMUS, QUA, & COX, JJ.
Corporation, Name.
Findings, warranted by reported evidence in a suit in equity to enjoin alleged violation of G.L. (Ter. Ed.) c. 155, Section 9, in substance that the use of two identical first words in the corporate names of the defendant and of the plaintiff had not operated to cause confusion among their respective business customers except in two or three instances of a minor nature, that their respective manufactured products were of different character and price, and that there was "no reasonable cause to grant the relief prayed for by the plaintiff," implied a finding that a person of average intelligence would not be misled by the similarity between the two names, and warranted a dismissal of the suit.
BILL IN EQUITY filed in the Superior Court on June 14, 1938, and afterwards amended.
The suit was heard by O'Connell, J., on September 6, 1938, and a final decree was entered dismissing the bill. The plaintiff appealed.
The case was submitted on briefs.
M. Tobey & A.
A. Tepper, for the plaintiff.
D. Whitcomb, for the defendant.
The plaintiff was incorporated under the laws of this Commonwealth on August 27, 1924, under the name of Universal Shoe Corporation. Its original name has been changed as follows: On December 6, 1929, to National Shoe Co. of Roxbury; on September 1, 1932, to National Shoe Company; on December 30, 1933, to General Shoe Corporation; and on March 19, 1934, to National Shoe Corporation. The defendant was incorporated under the laws of this Commonwealth on December 7, 1921, under the name of National Felt Slipper Co., Inc. and the following changes have been made in its name: on June 27, 1933, to National Shoe & Slipper Co. Inc.; and on March 24, 1938, to National Shoe Manufacturing Co. Inc.
The plaintiff's bill seeks to have the defendant enjoined from the use of its present name, National Shoe Manufacturing Co. Inc. The judge who heard the case made a "Memorandum of Findings and Order," and a final decree was entered dismissing the plaintiff's bill. The plaintiff appealed from this final decree. The evidence is reported and it is our duty to examine it and decide the case according to our own judgment giving due weight to the findings of the judge whose decision, based in part upon oral evidence, will not be disturbed unless plainly wrong. Marlborough v. Snow, 301 Mass. 429 , 430.
The bill, as originally drawn, proceeds upon the theory of unfair competition, but an amendment was allowed which alleges that the defendant, by the adoption and use of its name, is acting in violation of G.L. (Ter. Ed.) c. 155, Section 9. Both parties, as their names imply, are manufacturers of shoes, the plaintiff's factory being in Marlborough, and that of the defendant in Worcester. The judge found that the plaintiff had failed to sustain the burden of establishing that the use by the defendant of its name had occasioned any serious interference with the business operations of the plaintiff; that while both parties used the words "National Shoe" the similarity "in the use of such words" has not operated to cause confusion among their respective business customers except in two or three instances of a minor nature; that the shoes manufactured respectively by each are of different character and price; and "that there is no reasonable cause to grant the relief prayed for by the plaintiff." We have examined the evidence and, without reciting it, are of opinion that these findings ought not to be disturbed.
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