Premier-Pabst Corporation v. Elm City Brewing Co., 2320.

• Decision Date: 28 January 1935
• Docket Number: No. 2320.,2320.
• Citation: 9 F. Supp. 754
• Court: U.S. District Court — District of Connecticut
• Parties: PREMIER-PABST CORPORATION v. ELM CITY BREWING CO.

9 F. Supp. 754

PREMIER-PABST CORPORATION v. ELM CITY BREWING CO.

No. 2320.

District Court, D. Connecticut.

January 28, 1935.

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Edward S. Rogers, William T. Woodson, and James H. Rogers, all of Chicago, Ill., and Rockwell & Bartholow, of New Haven, Conn., for plaintiff.

William L. Hadden and George W. Crawford, both of New Haven, Conn., for defendant.

HINCKS, District Judge.

Plaintiff's counsel has argued that the defendant's appropriation of the words "Olde Maestro" is an enjoinable appropriation of a property right in the plaintiff, in that it is an appropriation by a competitor of "advertising value" paid for by the plaintiff. But the meaning which is thus assigned to the phrase "advertising value" is so uncertain that I am unable to pass upon the validity of the claim. I prefer to treat it as an invitation to analysis.

That every man has a privilege for purposes of trade to use and publicize his own legal name or his own trade-name or soubriquet seems never to have been seriously questioned. Likewise, the privilege of using the name or soubriquet of another, if lawfully acquired from that other as by contract. The latter privilege, to be sure, is subject to the limitation imposed by public policy that no one shall use another's name in such a way as to deceive the public; and from this limitation springs the doctrine that a trade-name is not assignable in gross. But this limitation has no application to the present case, for there is neither claim nor basis for claim that the plaintiff in its employment of Ben Bernie, the "Old Maestro," to advertise and popularize its products, is creating any confusion in the public mind as to the source of the products thus advertised.

But is this privilege to use and publicize one's name or soubriquet something which may ripen into an exclusive right? If so, what is the source of that right, and what its definition? Although countless cases have arisen involving the existence of such rights, curiously enough we find comparatively little analysis of the nature and source of the right itself, but much comment on the acts and conduct which are alleged to have violated the right.

Thus, some have vaguely suggested that a right to a name may be a part of one's "good will" which is a subject-matter of property from which all others may be excluded. But such an assertion gets us nowhere. For "good will" itself is too loose and uncertain a quantity for aid in definition. As commonly conceived, it is a compound of many factors, and those factors chiefly associated with the concept seem to have little association with rights in a name. Thus value "as a going concern" is frequently considered as a part of "good will." But such value seems quite distinct from the value attributable to the right to a name. And again, good will is somewhat vaguely considered as the favorable regard of the purchasing public for a particular person, or for goods or services known to the public to emanate from a particular source; a regard founded (usually) on past dealings or reputation and of value in so far as it may be expected to produce further dealings. But good will so construed certainly is not property in any technical sense; for no man can have, either by prescription or contract, such a proprietary right to the favorable regard of the public that he may exclude others therefrom. Necessarily the relationship between a given manufacturer and the public and the regard of the public for that particular manufacturer is affected by the relationship between the public and others, particularly such others as may be competitors of that manufacturer. For instance, if producer B undersells producer A, other things being equal, presumably the public will come to have a less favorable regard for A. Likewise, if B advertises and sells the same product as A, but of a superior quality or with some particular improvement, the public may be brought, by its preference for B or his product, to have a less regard for A. The value of A's good will may thus be seriously impaired; yet no one will contend that, at least under the unwritten law, A's rights have been violated. Indeed, it has been fundamental in the philosophy of the common law that it is by just such a process that progress comes.

Nor does it serve to say that a right to a name has value; and therefore it is a property right within the protection of the law. This is to argue a priori. To be sure, a right may have value if it exists. But the question still remains, Has the right an existence cognizable in the law?

And so we are brought back to fundamentals. What is a right under the unwritten law? Nothing but a claim acknowledged as a well-founded claim by the experience of society which is the essence of the common law. Bouvier, Right. And this broad relationship has received classic analysis by Blackstone, 1 Com. 124 et seq., into the absolute and relative; the absolute rights comprising the right to personal security, the right to personal liberty, and the right of property. In this classification is there room for a right to the exclusive use of a name?

It is difficult to perceive that such a specific right is a property right within the scope of this classification. But it should be noticed that even in Blackstone's time the right to reputation was considered as an inherent part of the absolute right of life. He says, 1 Com. 134: "The security of his reputation or good name from the acts of detraction and slander, are rights to which every man is entitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right."

But before one can have a good name, he must have a name; before he can build a reputation, he must have an identity to which that reputation may attach. And so, if indeed reputation is a matter of right, to be known as a particular individual is a right even more fundamental. Conceivably, some alien civilization might exist wherein each member of society was consigned to perpetual anonymity; wherein each was doomed to live and die as one ant in the hill, or as one cog in the machine of the state, without means or right for any identification of personality. But the common law has more nobly appraised the fullness of human life; and in its recognition of a man's right to enjoy the good repute which he has earned, it has from ancient times implicitly recognized his exclusive right to the identity which he has established for himself among his fellows and in the public eye. And this is the right, I think, which has been the subject-matter of countless cases of unfair competition, so-called.

In a simpler society, perhaps, the right was seldom differentiated from other human rights because seldom challenged. It had value only to its owner. But as a competitive economy emerged from the guild system, the commercial value, indeed, the necessity, of names as a means of identification came to be recognized; and by use, at first of trade-marks, the right to the exclusive use of a specific means for identification, was extended to include the goods of the individual as well. And later, when the so-called doctrine of secondary meanings was established whereby the law came to recognize the acquisition of rights in the use of geographical and generic names for limited purposes of trade, no new right was born. The law simply recognized that in society as it had developed a man who had come to be identified by the public for specific goods through some specific association was entitled to the exclusive use of such means of identification. Others, to be sure, were free to compete with him; to wrest from him the favorable regard of the public, if they could. But his right to be known as he was known was his right of identity, and against all improper threats the...