Pearl Optical, Inc. v. Pearle Optical of Ga., Inc.

• Decision Date: 07 March 1963
• Docket Number: No. 21960,21960
• Citation: 218 Ga. 701,130 S.E.2d 223
• Parties: , 138 U.S.P.Q. 487 PEARL OPTICAL, INC. v. PEARLE OPTICAL OF GEORGIA, INC., et al.
• Court: Georgia Supreme Court

Page 223

130 S.E.2d 223

218 Ga. 701, 138 U.S.P.Q. 487

PEARL OPTICAL, INC. v. PEARLE OPTICAL OF GEORGIA, INC., et al.

No. 21960.

Supreme Court of Georgia.

March 7, 1963.

E. J. Clower, Rome, for plaintiff in error.

Matthews, Maddox, Walton & Smith, Rome, for defendant in error.

Syllabus Opinion by the Court

QUILLIAN, Justice.

Pearle Optical of Georgia, Inc., and Pearle Optical of Monroeville, Inc., brought suit for injunction in the Floyd Superior Court against Pearl Optical, Inc. The petition alleged: that Pearle of Georgia began business in Savannah, Georgia, around April 24, 1961, while Pearle of Monroeville began doing business in Rome, Georgia, on or about April 30, 1962; that the defendant, a Georgia corporation, has engaged in doing business in Rome since July 19, 1962; that all three corporations are engaged in the conduct of the general business of dispensing opticians; that the plaintiffs compete with the defendants in Georgia and particularly that Pearle of Monroeville competes with the defendant within a radius of fifty miles of Rome; that the plaintiffs' respective businesses have been and are identified as 'Pearle Optical'; that this name has come to designate the optical business of the plaintiffs; that the defendant was well aware that the plaintiffs used the name 'Pearle Optical' to identify their business and they were so identified by the public; that the plaintiffs notified the defendant in writing to cease and desist using a similar trade name but that the defendants denied an invasion of the plaintiffs' rights; that prior to filing suit Pearle of Monroeville registered 'Pearle Optical' as its trade name in compliance with Code Ann. § 106-301 (Ga.L.1937, p. 804; Ga.L.1943, p. 398).

The plaintiffs alleged, on information and belief, that the defendant's use of an identical name was for the purpose of wilfully and maliciously seeking to obtain the fruits of the plaintiffs' efforts in developing the optical business in Georgia and particularly in the Rome area; that the use of the name 'Pearl Optical, Inc.' will mislead, confuse and deceive customers of the plaintiffs and the general public and cause them to deal with the defendant in the mistaken belief that they are dealing with the plaintiffs; that the acts of defendant encroach and are likely to encroach on the businesses of the plaintiffs, take advantage of and injure the good will of the plaintiffs, and cause confusion of the businesses of the plaintiffs and the defendant so that the public believes that the business and services of the defendant are the business and services of the plaintiffs or that the plaintiffs are in some way connected with the defendant.

There are further averments: that the acts of the defendant incorrectly identify the defendant as an affiliate of the plaintiffs to potential customers; that the defendant has borrowed the plaintiff's reputation, has forestalled and is likely to forestall the normal potential of the plaintiffs' businesses, has whittled away and diluted the trade name of the plaintiffs, and the defendant has received unjust enrichment, all to the injury and damage of the plaintiffs; that, if the defendant is permitted to continue the use of the similar trade name, it will reap a large measure of the benefit from advertising, reputation and good will of the plaintiffs, to which they are alone entitled and that such use constitutes an infringement of the plaintiffs' name and unfair trade competition.

The defendant filed its general and special demurrers to the petition. The trial judge overruled the general demurrers, reserving decision on the special demurrers. To the order overruling the general demurrers, the defendant excepted and assigns error, based on the grounds: that the petition shows that the plaintiffs have no vested or proprietary right in the name they seek to protect by injunction and that the petition fails to allege that the plaintiffs have any exclusive right to the use of the trade name in question; that the plaintiffs were precluded from asserting their right to the trade name by their failure to register their trade name in compliance with the statute, until shortly before bringing suit; that the petition shows on its face that it was brought prematurely, in that no overt act on the part of the defendant is alleged and that the acts complained of were mere apprehensions of injury. Held:

1. There is no merit to the defendant's contention that the petition fails to show that the plaintiffs have a proprietary and exclusive interest in the name 'Pearle Optical.' The petition sets out that the plaintiffs have continuously used the name in question, have expended large sums of money for advertising in that name, and thereby have established a good reputation and created good will for itself...