Platz v. Valentine

• Citation: 189 P. 163,106 Kan. 645
• Decision Date: 10 April 1920
• Docket Number: 22,574
• Parties: H. J. POWELL and STANLEY PLATZ, Appellees, v. A. J. VALENTINE, Appellant
• Court: United States State Supreme Court of Kansas

189 P. 163

106 Kan. 645

H. J. POWELL and STANLEY PLATZ, Appellees, v. A. J. VALENTINE, Appellant

No. 22,574

Supreme Court of Kansas

April 10, 1920

Decided January, 1920.

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. TRADE NAME--Name of Newspaper--Infringement--Injunction The owner of a newspaper who suspended its publication and merged it with that of another publisher, but who continued to maintain an office for the transaction of the unfinished business of the suspended paper and for the care of the business which he had built up in connection with his newspaper, and who continued to transact such business in its name, may enjoin a subsequent, rival publisher from using the name of the suspended newspaper, or a name so nearly similar to it as to be likely to confuse or mislead the patrons of the first publication, or to divert to the subsequent publisher the business patronage which the first publisher had built up through the successful publication of his newspaper in that locality for a considerable time.

2. SAME--Injunction Not Premature. Where actual damage through unfair trade practices is imminent or highly probable, the injured party is not ordinarily required to wait until he has actually suffered such damage. He may seek, at once, to forestall and prevent such damage by the aid of a court of equity.

3. SAME--Facts Show Infringement on Trade Name of Newspaper. One of the plaintiffs for several years owned and published in Coffeyville a newspaper commonly known as the "Sun," although its formal title was "The Coffeyville, Kan. Sun." He formed a partnership with another Coffeyville publisher who owned a paper called the "Journal." The partners merged their papers continued the publication of the "Journal," and suspended the publication of the "Sun"; but its former proprietor continued to maintain an office for the transaction of its accruing and continuing business. Soon after the merger, a third publisher, who had theretofore published a free paper in Coffeyville, called "The Earth," began the publication of a new paper formally entitled, "The Morning Sun and the Daily Earth," but which, by the style and the arrangement of its caption would be read and named as "The Sun" and would probably mislead the public and unfairly divert the business which had been built up in and about Coffeyville in connection with the earlier publication of that name. Held, that the use of the word "Sun" by the third publisher as a name or part of a name for his newspaper was an unfair trade practice and was properly enjoined.

4. SAME--Petition for Injunction--Verification. A temporary restraining order ought not to issue on a petition which is not positively verified; but when, later, it is properly verified and the restraining order has given place to a temporary injunction lawfully issued, no reversible error can be predicated on the improvident issue of the restraining order.

Thomas J. Hanlon, and Walter S. Keith, both of Coffeyville, for the appellant.

Charles D. Welch, and Dallas W. Knapp, both of Coffeyville, for the appellees.

OPINION

DAWSON, J.:

This action was for an injunction to restrain unfair trade practices.

The plaintiffs, who for some years past had respectively conducted morning and evening newspapers in Coffeyville, the "Sun" and the "Journal," formed a partnership in January, 1919, consolidated their newspapers, suspended the publication of the "Sun," and thereafter continued to serve the readers of both papers by the publication of the "Journal." The plaintiff Platz, who had been the individual owner of the "Sun" before the merger, continued to maintain a business office for the "Sun," carried a bank account under its name, received and issued checks in the name of the "Sun," and attended to the business of the suspended publication.

On February 2, 1919, the defendant, who theretofore had been publishing a paper in Coffeyville for free distribution, called the "Earth," commenced the publication of a new morning paper in Coffeyville, called the "Sun." The plaintiffs at once protested against the use of the name "Sun," and as their protest was disregarded, this action was begun. A restraining order was issued, and upon a full hearing some days later the district court granted a temporary injunction,

"That the defendant, A. J. Valentine, be and he hereby is restrained and enjoined from employing in his business conducted at Coffeyville, Kansas, the name of 'The Sun,' or 'The Morning Sun,' or any name employing the word 'Sun,' and these things he is restrained and enjoined from doing, either directly or indirectly."

Defendant appeals, urging that the demurrer to plaintiffs' evidence should have been sustained. The plaintiffs' evidence tended to support the allegations of their petition. It is measurably true that the full name of the earlier paper was "The Coffeyville, Kan. Sun," and that the defendant's paper was technically labelled "The Morning Sun and the Daily Earth," but the evidence was sufficient to show that the ordinary trade name of the earlier paper was the "Sun." The caption of the paper was printed in bold type about an inch in height "The Sun," the words being separated by an ornamental vignette showing the rays of a rising sun, and in the center the congested district of a thriving town, with the words "Coffeyville, Kan." in small, neat type encircling the bottom. The words of the device may have served the purpose of being part of the paper's formal title, but it more precisely served the purpose of indicating that the pleasing picture in the vignette was intended to portray Coffeyville. While it is also true that the full title of the defendant's paper was "The Morning Sun and the Daily Earth," yet the prominent words were "The Sun." The word "Morning" was discernible only by a close scrutiny of a vignette roughly similar but not nearly so elaborate as that of the old paper's device. The words "and the Daily Earth" were printed beneath the main caption in common brevier or bourgeois type. Only by careful reading would it be noticed that these words were formally intended to be part of the paper's name. It is a matter of common knowledge that where a newspaper has a long name it is seldom known by that name. The public, and the owners also, invariably abridge it. For all practical purposes, each paper in this case must be considered to have borne the name of the "Sun." After the merger of the Sun and the Journal, the proprietor of the suspended paper continued to receive and pay out money in the name of the "Sun," and conducted an office for the transaction of...