Rader v. Derby

• Decision Date: 25 January 1950
• Docket Number: No. 17874,17874
• Citation: 120 Ind.App. 202,89 N.E.2d 724
• Parties: RADER v. DERBY.
• Court: Indiana Appellate Court

Page 724

89 N.E.2d 724

120 Ind.App. 202

RADER v. DERBY.

No. 17874.

Appellate Court of Indiana, in Banc.

Jan. 25, 1950.

Lockwood, Goldsmith & Galt, Indianapolis, Stevenson & Kendall, Danville, Russell J. Wildman, Peru, for appellant.

O. F. Rhodes, Peru, R. M. Rhodes, Peru, Rhodes & Rhodes, Peru, for appellee.

MARTIN, Presiding Judge.

The appellant brought this action against the appellee for an injunction and damages for unfair competition as a result of the appellee's manufacturing and sale of what is commonly known as a paddle, which paddles so manufactured by the appellee were practically the same size and dimensions as the paddles which had been manufactured and distributed by the appellant and his predecessors. Said action is based upon the theory that on account of the long period of usage by the appellant of the design of the staggered letters on the appellant's paddle, the size, shape and dimensions thereof, said appellant is entitled to the unrestricted use of that particular type and style of paddle.

The findings of the trial court in this case are as follows: '* * * Said cause having been tried and taken under advisement by said court, the court now finds that the paddle manufactured by the plaintiff has been in common use for a great number of years; that it is not a patentable article and under no rule of law could the manufacture and use of such article be restrained; that there are all sizes and shapes of paddles made by this firm and the same sizes and same shape is not a matter for judicial review; that there has been some confusion in the business transactions between said plaintiff and defendant but that the evidence does not disclose any act or statement of the defendant which would unnecessarily increase the confusion; that said Old Hickory Paddle Company never notified their prospective purchasers that Mr. Derby was no longer representing them and was selling his own product; that the term 'King of Swing' was the personal property of the defendant and was never used by the Old Hickory Paddle Company, plaintiff herein, or any of its representatives other than Mr. Derby; that the staggered letters and other words and insignia on said paddles manufactured by the plaintiff were so placed there in the manner and form as ordered by the purchasers of said paddles and not as directed by the plaintiff herein; that the plaintiff herein is not entitled to the sole right and use of the staggered Greek letters as stamped on the paddles manufactured by the plaintiff herein; that the plaintiff company has manufactured said paddles with the staggered Greek letters for some period of twenty years or more; that the plaintiff is not entitled to any damages; that said defendant should be enjoined from in any manner, either directly or indirectly, representing himself as a representative of the Old Hickory Paddle Company or his product as the product of the Old Hickory Paddle Company, and that he should be restrained from using any advertisement, card or other devise, in which the words, 'Old Hickory' or 'Old Hickory Paddle Company' appear and that he further be restrained from using a circle around the hole in the paddle for any purpose; that the defendant pay the costs of this action * * *'

Judgment was entered accordingly.

The error assigned for reversal is that the court erred in overruling appellant's motion for new trial.

The questions presented in the motion for new trial are:

1. The decision of the court is not sustained by sufficient evidence.

2. The decision of the court is contrary to law.

3. Error of law occurring at the trial and excepted to by said plaintiff herein.

The appellant is confronted with the finding in part against it, which is negative in character. And so, we are without authority to reverse unless the evidence, as construed most favorably to the appellee, entitled the appellant to relief which was denied. Wilson, Adm'x, v. Rollings, 1938, 214 Ind. 155, 14 N.E.2d 905; Wadler v. Mogul Rubber Corporation, 1945, 116 Ind.App. 152, 61 N.E.2d 472; Scoopmire v. Taflinger, 1944, 114 Ind.App. 419, 52 N.E.2d 728; Pearson Co. v. Cohen, Ind.App.1949, 83 N.E.2d 433.

Unfair competition is always a question of fact. The question to be determined in every case is whether or not, as a matter of fact, the name or mark used by defendant has previously come to indicate and designate plaintiff's goods, or to state it another way, whether defendant, as a matter of fact, by his conduct is passing off his goods as plaintiff's goods, or his business as plaintiff's business. Hartzler v. Goshen Churn & Ladder Co., 1914, 55 Ind.App. 455, 104 N.E. 34; Deister Concentrator Co. v. Deister Machine Co., 1916, 63 Ind.App. 412, 112 N.E. 906, 114 N.E. 485; Magazine Publishers v. Ziff-Davis Pub. Co., 2 Cir., 1945, 147 F.2d 182; Pearson v. Cohen, supra. That question has been determined by the trial court.

The appellant claims exclusive usage to the size, and shape of the paddle in question and especially to the right to use the staggerted Greek burned in lettering.

The evidence shows that this appellant and his predecessor 'Old Hickory Paddle Company' manufactured, sold, and distributed fraternity paddles to college fraternities and sororities for more than twenty years; that the appellee also manufactured, sold, and distributed fraternity paddles to college fraternities and sororities. The paddles in question are approximately the same size and shape. The appellant's paddle has two circles at the top of handle part with a hole in the center through which was a thong. Within the circle next to the hole it has the following lettering 'Old Hickory Trademark'. Within the other circle it has the following lettering 'Old Hickory Paddle Co., Danville, Ind.'.

The appellee's paddle has one circle at the top or handle part with a hole in the center through which was a thong. Within the circle it has the following lettering 'King of Swing, Bunker Hill, Ind.'.

The trial court found that the staggered Greek letters and other words and insignias on said paddles manufactured by the appellant were so placed there in the manner and form as ordered by the purchasers of said respective paddles. There is not a particular letter or set of staggered Greek letters, or a particular symbol involved herein. It may be any one letter or more of the Greek alphabet that are ordered by the purchasers of the paddles, said Greek letter or letters to be burned on the paddles in a staggered arrangement.

It is our opinion there is nothing definite and certain that could be protected pertaining to the Greek letters without giving a monopoly to the appellant of the whole Greek alphabet, and the law does not recognize a monopoly of the Greek alphabet. In William Stevens (Limited) v. Casell and Co. (Limited) (1913), 29 Times L.R. (Eng.) 272, 30 Rep.Pat.Cas. 199 it was said, 'It is a matter of importance to protect a trader from any unfair attempt to take advantage of the...