Riggs Optical Co. v. Riggs
| Decision Date | 05 January 1937 |
| Docket Number | 29797. |
| Citation | 270 N.W. 667,132 Neb. 26 |
| Parties | RIGGS OPTICAL CO. v. RIGGS. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. One who acquires a trade-name in a particular locality is entitled to protection from unfair competition by a competitor using a name of such similar import as will probably deceive the public.
2. One is entitled to equitable relief if the use of the trade-name is such as is calculated to deceive the public and does mislead them.
Appeal from District Court, Lancaster County; Frost Judge.
Suit by the Riggs Optical Company, consolidated, against Earl F Riggs. Judgment for plaintiff, and defendant appeals.
Affirmed.
Riggs Optical Company.
C. Russell Mattson and Chambers & Holland, all of Lincoln, for appellant.
Flansburg, Lee & Sheldahl, of Lincoln, for appellee.
Heard before GOSS, C. J., and GOOD, EBERLY, DAY, PAINE, and CARTER, JJ., and RAPER, District Judge.
This is an appeal from a decree permanently enjoining Dr. Earl F. Riggs, a licensed optometrist, from the use in advertising of the names Dr. Riggs or Dr. Earl F. Riggs of the Riggs Optical Company, or the Dr. Earl F. Riggs Optical Company.
The plaintiff, the Riggs Optical Company, is a corporation organized for the purpose of manufacturing and selling optical goods. It manufactures eyeglasses according to prescriptions of oculists, optometrists, and refractionists and sells them to the public. The petition alleges that the Riggs Optical Company has been engaged in such manufacture and sale in Lincoln since 1924; that its name is a trade-name known throughout the United States; that the defendant Earl F. Riggs is a licensed optometrist in this state where he examines eyes and fits glasses for the public; and that for the purpose of taking advantage of the good-will, he has advertised extensively as " Riggs Optical Company" and as the " Riggs of said company," and that by reason of such advertising he has misled many of its patrons to its damage.
The answer of the defendant admits that he is a licensed optometrist, engaged in the business of fitting and selling eyeglasses to the public. He alleges that he is engaged in the retail business of selling glasses which are manufactured for him by others; that the plaintiff manufactures optical goods which it sells to various oculists, optometrists, and refractionists according to prescription; that the plaintiff is a wholesaler and does not engage in the retail busi ness; that its advertising is such that it is estopped to deny that it does a strictly wholesale business.
The evidence in the case is substantially without conflict. It appears that the Riggs Optical Company was originally organized as a Nebraska corporation in 1917 with the corporate name " Riggs Optical Company," and that later it was reorganized as a Delaware corporation with the name " Riggs Optical Company, Consolidated." It has always used as its trade-names " Riggs" or the " Riggs Optical Company." It has advertised its business extensively by catalogs and by magazines circulated among optometrists and oculists. It advertises in magazines and its catalogs that it does business at wholesale.
Its business is the manufacturing and selling of eyeglasses and optical goods. It receives its business from oculists and optometrists who send their patients and customers with a prescription showing the lens required for the correction of vision. The patient as a general practice takes the prescription to the office of the optical company where he picks out the shape of the lenses and selects a frame. The customer's face is measured, the glasses are manufactured, and the glasses are fitted, adjusted, and delivered to him. The Riggs Optical Company usually collects the price and remits a portion of it to the oculist or optometrist. The reason for this remittance is not apparent. However, it is upon this that it is asserted the business is wholesale.
Dr. Earl F. Riggs, the defendant, is a licensed optometrist who examines eyes, writes prescriptions for the manufacture of glasses, and sells them to the public. He sends his prescriptions to a manufacturer of eyeglasses in the same manner in which oculists and optometrists send their prescriptions to the plaintiff company. He has advertised widely as " Dr. Earl F. Riggs Optical Company" or as " Riggs," " Dr. Riggs" or " Dr. Earl F. Riggs of the Riggs Optical Company." His use of the term " optical company" is as a trade-name only, as there is no company or corporation. He has erected a sign exactly the same as the sign used by plaintiff Riggs Optical Company with the word " Riggs" standing alone.
It...
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