Ransdell v. Sixth St. Food Store of Lexington, Inc.

• Decision Date: 01 March 1963
• Docket Number: No. 35343,35343
• Citation: 120 N.W.2d 290,174 Neb. 875
• Parties: , 137 U.S.P.Q. 169 E. C. RANSDELL, Bert Ransdell, Dwight Trautman, Shirley Trautman, doing business as Sixth Street Locker and Grocery, a partnership, Appellants, v. SIXTH STREET FOOD STORE OF LEXINGTON, INC., a Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 290

120 N.W.2d 290

174 Neb. 875, 137 U.S.P.Q. 169

E. C. RANSDELL, Bert Ransdell, Dwight Trautman, Shirley Trautman, doing business as Sixth Street Locker and Grocery, a partnership, Appellants, v. SIXTH STREET FOOD STORE OF LEXINGTON, INC., a Corporation, Appellee.

No. 35343.

Supreme Court of Nebraska.

March 1, 1963.

Syllabus by the Court.

1. The Summary Judgments Act authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is clear what the truth is, and that no genuine issue remains for trial.

2. The burden is upon the party moving for a summary judgment to show that no issue of fact exists and unless he can conclusively do so, the motion must be overruled.

3. In considering a motion for summary judgment, the court should view the evidence in the light most favorable to the party against whom it is directed.

4. Where a party has acquired a trade name in a particular locality, he is entitled to protection against unfair competition in his particular line of business by the use of a competitor of a name of such similar import as to probably deceive the public.

5. Proof of fraud or deliberate deception is not necessary to establish unfair competition.

6. A genuine issue as to a material fact cannot be tried and determined upon affidavits, and this is especially true where the credibility of witnesses is involved.

7. A combination of the use of geographical names with generic words related to the description of a business may be used together in such a manner as to create a deceptive use under particular circumstances, and if they do, then such use may be actionable.

8. Where the combination of generic words and geographical words or symbols is such that the resemblance is apt to mislead purchasers or those doing business with the company, and who are acting with ordinary and reasonable caution, or if it is calculated to deceive the ordinary buyer in ordinary conditions, it is sufficient to entitle the one first adopting the name to relief.

Smith Brothers, Lexington, for appellants.

Hollman & McCarthy, Baskins & Baskins, North Platte, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

WHITE, Chief Justice.

This is an appeal from the order of the district court sustaining a motion for summary judgment and dismissing the plaintiffs' petition and action. It is an action brought by the plaintiffs as partners doing business in Lexington, Nebraska, as Sixth Street Locker and Grocery, to enjoin the defendant, Sixth Street Food Store of Lexington, Inc., from displaying and using a large sign reading 'Sixth Street,' and from using the words 'Sixth Street,' 'Sixth Street Food Stores,' and 'Sixth Street Food Store of Lexington, Inc.,' or any combination thereof in the operation of its business on Seventh Street in Lexington, Nebraska.

We determine first what the issues actually were. Plaintiffs alleged, by their amended petition, that they had established and had been in business in Lexington since April of 1950; that they had conducted their business under the name of 'Sixth Street Locker and Grocery,' and operated continuously on East Sixth Street; that they have, at all times, advertised and held themselves out to the public by this name; that it had become known to the general public of the trade area that the words 'Sixth Street' and 'Sixth Street Locker and Grocery' were a distinctive trade and business name belonging to the plaintiffs; and that said words had acquired a secondary meaning exclusively relating to the business in the trade area and community of Lexington, Nebraska. They alleged that they had built up and were enjoying a substantial business in the city of Lexington. It is then alleged that the defendant, 'Sixth Street Food Store of Lexington, Inc.,' became incorporated on August 27, 1958; and that at that time it knew that the plaintiffs used the name 'Sixth Street Locker and Grocery,' and knew that the plaintiffs had used it continuously since April 1950. They alleged that the defendant began operation of its business on Seventh Street in Lexington; that it used, and continued to use the words 'Sixth Street' and 'Sixth Street Food Store' in the operation of its business; and that the defendant had a large sign over its place of business reading 'Sixth Street,' and is generally holding itself out to the public under the firm name and style of 'Sixth Street Food Store.' The plaintiffs specifically alleged that the defendant by the use of said sign and said names intended to mislead and confuse the customers of the plaintiffs; that this use did confuse the customers of the plaintiffs and beguile them into dealing with the defendant under the belief that they were dealing with the plaintiffs; and that there would be a deception of the general public and the plaintiffs' customers and a diversion of plaintiffs' customers to the defendant's place of business.

The plaintiffs further alleged that subsequent to August 27, 1958, the date that the defendant became incorporated, the defendant filed a trade name registration certificate with the Secretary of State, made legal publication thereof, and it now claims the right to use the trade name 'Sixth Street Food Store.' They alleged that this name is misleading and deceptive resulting in confusion in mail and shipments of merchandise, confusion of business accounts, and deception of the buying public into the belief that the defendant's business was the plaintiffs. There are further allegations of irreparable injury and formal allegations which we do not deem necessary to repeat here. The plaintiffs further alleged that 2 days after the incorporation of the defendant about August 27, 1958, by letter, they advised the defendant of their objection to the use of these words and demanded that the defendant cease and desist from using them.

We go now to the defendant's answer. It admitted the incorporation on August 27, 1958; admitted the mailing on August 29, 1958; of the letter from the plaintiff demanding that it cease and desist; admitted that it filed a trade name registration with the Secretary of State on September 12, 1958, claiming the trade name 'Sixth Street Food Store'; admitted that it operates its business on Seventh Street; admitted that it displays a large sign thereon reading 'Sixth Street'; and admitted that it does hold itself out to the public as 'Sixth Street Food Store.' It further generally denied the allegations of the plaintiffs' petition; alleged that it has no intent to mislead or deceive by the use of these names; in substance, alleged that its right to use these names arises out of an assignment from companies or partnerships that had operated at North Platte and Ogallala for many years and had acquired the right to use the names 'Sixth Street' and 'Sixth Street Market'; alleged that said assignment was made on September 1, 1958; and alleged that it was duly reigstered with the Secretary of State.

It should be pointed out that a demurrer was filed to the amended petition in this case and was overruled. There are no depositions of the parties or witnesses in this case; and no requests for admissions or answers thereto. The issue drawn here on motion for summary judgment is based solely upon the affidavits filed by the defendant in support of the motion for summary judgment and the counteraffidavits filed by the plaintiffs. Before we examine the evidence, we state here the applicable rules with reference to the determination of the issues before us on a motion for summary judgment. The Summary Judgments Act authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is clear what the truth is, and that no genuine issue remains for trial. Hall v. Hadley, 173 Neb. 675, 114 N.W.2d 590. On examination of the evidence on a motion for summary judgment, this court examines the evidence, not to decide any issue of fact presented, but only to discover if there is any real issue of fact that exists under the pleadings and the affidavits, and the supporting documents to the motion. Hall v. Hadley, supra; Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244. The burden is upon the party moving for a summary judgment to show that no issue of fact exists and unless he can conclusively do so, the motion must be overruled. In considering a motion for summary judgment, the court should view the evidence in the light most favorable to the party against whom it is directed. It is further true that in cases involving the credibility of witnesses, summary judgment does not permit a trial by affidavit if either party objects. Hall v. Hadley, supra; Illian v. McManaman, supra. A motion for summary judgment may be used by a defendant to assert a defense if there is no genuine issue of fact, but only a question of law. See 3 Barron & Holtzoff, Federal Practice and Procedure, s. 1244, p. 203. We first determine whether the plaintiffs have stated a cause of action and the nature of the issues raised by their pleadings. We may summarize the rule as to the rights of the parties as to trade names in a particular locality as follows: ' * * * where a party has acquired a trade name in a particular locality he is entitled to protection against unfair competition in his particular line of business by the use of a competitor of a name of such similar import as to probably deceive the public.' Peterson & Co. v. Jay, 158 Neb. 305, 63 N.W.2d 174. See, also, Riggs Optical Co. v. Riggs, 132 Neb. 26, 270 N.W. 667; Regent Shoe Mfg. Co. v. Haaker, 75 Neb. 426, 106 N.W. 595, 4 L.R.A.,N.S., 447; First National Bank & Trust Co. of Kalamazoo v. First National Credit Bureau, Inc., 364 Mich. 521, 111 N.W.2d 880. Proof of fraud or deliberate deception is not necessary to establish unfair competition under the above holding. It appears that the rule is that if there is a substantial similarity leading to...