Plant Seed Co. v. Michel Plant & Seed Co.

• Decision Date: 07 December 1886
• Parties: PLANT SEED COMPANY, Appellant, v. MICHEL PLANT & SEED COMPANY, Respondent.
• Court: Missouri Court of Appeals

23 Mo.App. 579

PLANT SEED COMPANY, Appellant,

v.MICHEL PLANT & SEED COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 7, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Reversed and remanded.

LEONARD WILCOX, for the appellant: A corporation, as well as an individual, may be enjoined from the use of a name where it appears that it is an unlawful infringement on the name used by or belonging to another, even if such name be its corporate name. 1 High on Injunctions, sect. 5907; Ex parte Walker, 1 Tenn. Ch. 101; Holmes, etc., v. Holmes, etc., Co., 37 Conn. 279; Gen. Stat. of Conn., 1866, pp. 170, 173, sects. 393, 405; Goodyear Rubber Co. v. G. R. Mf'g Co., 22 Blatch. C. C. R. 421; Morawetz on Priv. Corp. [2 Ed.] sects. 354, 1064; Wallace v. Loomis, 97 U. S. 154; Ang. & Ames on Corp. [11 Ed.] 432, 433; Boogher v. Life Ass'n, 75 Mo. 323; Bridge Co. v. Prange, 35 Mich. 400, 403; Ins. Co. v. Needles, 113 U. S. 580. The resemblance between the name adopted by the defendant company and the plaintiff's name is sufficiently close to justify the court to interfere by injunction. Gamble v. Stephenson, 10 Mo. App. 581; Sanders v. Utt, 16 Mo, App. 324; Browne on Trade-Mark [2 Ed.] sects. 33, 228, 385; Glenny v. Smith, 11 Jur. [N. S.] 964. The corporate name of the defendant company was adopted in violation of an express statute, and its use may be enjoined at the suit of a private party. Rev. Stat. 1879, sects. 926, 957; Pomeroy's Eq. Jur., sects. 252, 1347, 1349; Overall v. Ruenzi, 67 Mo. 203, 207; Matthis v. Town of Cameron, 62 Mo. 504, 506; Hayden v. Tucker, 37 Mo. 214; Wood on Nuisances [2 Ed.] 904; High on Injunctions, sects. 897, 901, 907. An injunction will lie at the suit of the person injured, to prevent the use by another of generic terms or other names common to the public, for the fraudulent purpose of diverting his custom. Lee v. Haley, 5 Ch. App. cases 155; Glenny v. Smith, 11 Jur. [N. S.] 694; Boswell v. Mathie, 11 Sess. Cases [Rettie] 1072; Matsell v. Flanagan, 2 Abb. Pr. R. [N. S.] 459; Churton v. Douglass, 28 L. J. Ch. 841; Pierce v. Guitard, 8 Pac. R. 645, 637; Bouluois v. Peake, 13 Ch. Div. 513 n; Browne on Trade Marks, sects. 34, 522; 3 Pomeroy's Eq. Jur., sect. 1354; Marsh v. Billings, 7 Cush. 331.

KLEIN & FISSE, for the respondent: The action of the state authorities in permitting a corporation to adopt a particular name, either upon its organization, or subsequently, is conclusive; and that the right of the company to employ that name is not subject to be collaterally attacked. Goodyear Rubber Co. v. Goodyear Rubber Mfg. Co., 21 Fed. Rep., 277; 1 Morawetz on Corp., sects. 353, 354. In dealing with cases of trade names, even if the two names are identical, the courts, before granting any injunction, require clear proof that the defendant adopted and continued to use the name for the purpose of palming off his wares as the wares of the plaintiff. Meneelyv. Meneely, 62 N. Y. 427; Phelan v. Callender, 6 Hun, 244; Carmichael v. Latimer, 11 R. I. 395; Faber v. Faber, 49 Barb. 405; Landreth v. Landreth, 22 Fed. Rep. 41. If the two names are not strictly identical, but are merely similar, stronger proof of this fraudulent purpose is demanded. 10 Cent. L. J. 481.

ROMBAUER, J., delivered the opinion of the court.

This is a trade name case. As the judgment appealed from was rendered on demurrer, it will be necessary only to set out the amended petition and the grounds of demurrer thereto.

The petition was as follows:

“Plaintiff for cause of action states that it is a private business corporation duly incorporated under and pursuant to the laws of the state of Missouri; that it was so incorporated on the ____ day of November, 1872, and is located and has its chief place of business in the city of St. Louis, state of Missouri.

That the defendant is likewise a corporation duly incorporated under the laws of the said state of Missouri, and is also located and has its chief place of business in said city of St. Louis; that it was so incorporated originally in the year 1878 under the corporate name, ‘H. Michel and Company;’ that at all the times hereinafter mentioned the defendants, Henry Michel and Ernest Michel, were and still are directors in said defendant corporation, constituting a majority of the same and owning nearly all the stock therein. That from the time of its incorporation down to the present time plaintiff has been continuously carrying on the business for which it was and is incorporated, to-wit: The dealing in, buying and selling, garden, farm, grass, vegetabe, flower, grain, and other kinds of seeds and plants; that it has so carried on said business in said city of St. Louis, and was originally incorporated under and has always used and been known by the corporate name, ‘Plant Seed Company,’ the name ‘Plant’ being the family name of the principal stockholders.

That it has always exercised great care in the selection and purchase of the seeds and plants purchased to be sold to its customers, and thereby at, and long before the grievances herein complained of, had become widely known and acquired a high reputation throughout the city of St. Louis, the states of Illinois, Kansas, and Missouri, and all the surrounding region, by said corporate name, as a dealer in seeds and plants of the kind aforesaid, which could be relied on as seminiferous and productive, and if properly sown to germinate and grow and produce grasses, grain, and vegetables after their kind; that prior to the grievances hereinafter complained of, plaintiff had expended large sums of money in establishing and advertising its said business under its said corporate name, and thereby prior to said time had come to be widely known by said name, and had made said name valuable and profitable to itself and had come to command a large and profitable trade in the articles and merchandise aforesaid.

That the defendant corporation has been, since its organization, engaged principally in the business of growing, dealing in, and selling flowers. That persons engaged in such business are usually and commonly known as, and are called, florists; that, although they do deal in flower plants, yet they are not commonly, nor usually spoken of, nor are they generally known as dealers in plants; that the defendant corporation, during all the time last aforesaid has also dealt in seeds of the same kinds as those dealt in by the plaintiff, as hereinbefore alleged, but persons engaged in such business are not commonly nor usually known or spoken of as dealers in plants; that notwithstanding the long and quiet use, and enjoyment of its said corporate name by plaintiff, the defendant corporation, and particularly the other defendants, who are the sole directors therein, and control or own nearly all the capital stock thereof, being well aware of the premises, and intending and designing to injure and defraud, and for the purpose of injuring and defrauding, plaintiff in its business, and misleading and deceiving the public, and securing to themselves and reaping the benefit of the reputation and trade acquired by the plaintiff, as aforesaid, and decoying persons into their store, who wished and intended to trade with the plaintiff, and leading them to suppose they were in the plaintiff's store, did, on or about the ______ day of ______, 1880, and contrary to the statute in such case, made and provided, the said defendant corporation being then and there engaged in the business already stated, and having its principal place of business in the city of St. Louis, as aforesaid, change the name of the said defendant corporation, viz.: ‘H. Michel & Company,’ to the name ‘Michel Plant & Seed Company,’ and opened stores in the said city of St. Louis, where they carried on the said business under the said last mentioned name, and on the ______...