Rogers v. Broughton

• Decision Date: 02 July 1952
• Docket Number: No. 10071,10071
• Citation: 250 S.W.2d 606
• Parties: ROGERS et al. v. BROUGHTON.
• Court: Texas Court of Appeals

Page 606

250 S.W.2d 606

ROGERS et al. v. BROUGHTON.

No. 10071.

Court of Civil Appeals of Texas, Austin.

July 2, 1952.

Rehearing Denied July 30, 1952.

Scott, Wilson & Cureton, Frank M. Wilson, Waco, for appellants.

Clark & Seley Harold Clark and Martin D. Eichelberger, all of Waco, for appellee.

HUGHES, Justice.

This is an unfair competition suit in which appellants S. J. and N. J. Rogers, doing a general retail optometry and optical business in Waco, Texas, under the trade name 'Texas State Optical Company' sued appellee, Jerome W. Broughton, who is engaged in the same business in Waco under the trade name 'Texas Optical Company' to enjoin the use of such name in connection with such business on the ground that it infringes upon appellants' prior appropriation of the name 'Texas State Optical Company.'

Appellants alleged that the word 'Texas' as used in their trade name had acquired a secondary meaning and to the general public such trade name had come to denote their particular business and the excellence of their service and the high quality of their goods and that the name 'Texas Optical Company' was so similar to their trade name as to mislead, confuse and deceive the public to such an extent that the public in general would be lead to believe that the business conducted by appellee was actually the one operated by appellants.

A single issue was submitted to the jury asking if the use by appellee of the trade name 'Texas Optical Company' constituted, as to appellants, unfair competition. The answer was 'no.'

'Unfair competition' was defined in the charge and no objection thereto was filed.

Upon this verdict judgment was rendered for appellee.

Appellants' first two points are to the effect that the two trade names in question are so similar that, as a matter of law, appellee's use of the name 'Texas Optical Company' created a likelihood that the ordinary purchaser would be deceived, misled and confused and hence constituted unfair competition.

We are unable to agree.

In Dilworth v. Hake, Waco, Tex.Civ.App., 64 S.W.2d 829, 830, Alexander, Justice, writ dism., the Court held that the names 'T. M. Dilworth Abstract Company' and 'Dilworth Abstract Company' were not so similar as to constitute unfair competition as a matter of law, the Court saying:

'It was a question of fact for the jury as to whether the use of such name by appellee in the manner shown by the evidence was calculated to mislead the public.'

In Plaza Co. v. White, San Antonio, Tex.Civ.App., 160 S.W.2d 312, 314, writ ref., the Court in considering the names 'The Plaza Hotel' and the 'White Plaza Hotel' in an unfair competition case said:

'It is true of this case, as of most cases of a similar nature, that 'what degree of resemblance between the names or devices is sufficient to warrant this interference of a court in cases of this kind is not capable of exact definition. It is, and must be, from the very nature of the case, mainly a question of fact, to be determined by the circumstances appearing in each particular case.' Computing Cheese Cutter Co. v. Dunn, 45 Ind.App. 20, 88 N.E. 93, 95, quoting from Atlas Assurance Co. v. Atlas Insurance Co., 138 Iowa 228, 112 N.W. 232, 114 N.W. 609, 15 L.R.A.,N.S., 625, 128 Am.St.Rep. 189.'

In Suniland Furniture Company v. Sunnyland Wholesale Furniture Company, Dallas, Tex.Civ.App., 235 S.W.2d 674, writ ref., a jury finding that there was not such similarity in the two names, by which the case is styled, as to constitute unfair competition was sustained.

See also Dallas Plumbing Company v. Dallas County Plumbing Co., Dallas, Tex.Civ.App., 253 S.W. 308.

It would serve no useful purpose to review the many cases cited by the parties as the names involved are not the same as those here.

The two names before us are not identical. They do not sound alike. They do not look alike. There is, of course, a similarity, but whether this is so strong as to in all reasonable probability mislead and deceive the prospective patrons of the businesses concerned is, we believe, a matter for jury determination.

Appellants' third point is that the verdict of the jury is against the 'overwhelming preponderance of the evidence.'

Decision of this question is not required since we are reversing the case for improper jury argument but in view of another trial we will briefly discuss the evidence.

Seven witnesses testified for appellants that they were in varying states of confusion over the two names. Appellee offered four witnesses who testified to a lack of confusion.

There was no evidence that anyone desiring the services offered by appellants and appellee had actually gone to one place believing it was the other.

Considering the evidence as a whole and the fact that Waco is quite a large city we do not believe that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust.

Appellants' fourth point is that the verdict of the jury is against the undisputed evidence.

This point is overruled. See Ravel v. Couravallos, Tex.Civ.App., 245 S.W.2d 731, where we held, in a case of this character, that even though the evidence as to confusion was uncontradicted the question was still one of fact for the jury.

Appellants' last point complains of prejudicial jury argument on the part of appellee's counsel. This point is sustained.

The trial judge certified to the following:

'Be it remembered, that upon the trial of the above cause, during the opening argument of de...