Shoppers Fair of Arkansas, Inc. v. Sanders Company
| Decision Date | 17 August 1962 |
| Docket Number | No. 1616.,1616. |
| Citation | 207 F. Supp. 718 |
| Parties | SHOPPERS FAIR OF ARKANSAS, INC., et al., Plaintiffs, v. The SANDERS COMPANY, Inc., Defendant. |
| Court | U.S. District Court — Western District of Arkansas |
Cole, Friedman & Deitz, New York City, Warner, Warner & Ragon, Fort Smith, Ark., for plaintiffs.
Bryan & Fitzhugh, Fort Smith, Ark., for defendant.
The above named plaintiffs filed their original complaint on October 25, 1961, in which they alleged that the acts of defendant, d/b/a "IGA Shoppers Fair," in Fort Smith, Arkansas, since its commencement in June 1961, constitute unfair competition with plaintiffs and an infringement of the rights of plaintiffs; that as a result of the sale operations and advertising of the plaintiffs and affiliates in states bordering Arkansas, the trade name and style, "Shoppers Fair," and distinctive means of plaintiffs' merchandising have developed and now have a secondary and distinctive trade name meaning to the public, and have come to and now do mean and stand for the stores, products and business operations of plaintiffs to the general public and to the general merchandising business throughout the United States; that the acts of the defendant impose a likelihood of injury to the business reputation of the plaintiffs, and that the distinctive quality of the trade marks, trade names, labels and forms of advertising of the plaintiffs would be diluted; that the plaintiffs intend to expand their line of business into the State of Arkansas and that the acts of the defendant are calculated to avail defendant of plaintiffs' valuable good will and are calculated to deceive and confuse the general public as to the source of goods purchased by them, so that the public is likely to believe that the goods of the defendant are goods of the plaintiffs, or that the plaintiffs are in some way connected with or in some way sponsors of defendant.
The defendant filed its answer on November 17, 1961, in which it denied the allegations of the complaint and specifically alleged that it commenced business as a retail grocery in Fort Smith under the name "IGA Shoppers Fair," at a time prior to incorporation of plaintiffs' Shoppers Fair of Arkansas, Inc., under the laws of the State of Delaware, or its qualification to do business in Arkansas; that the defendant operates a retail grocery store in which approximately 95 percent of its sales in dollar volume are of groceries; that the defendant has not been in competition with any of the plaintiffs or their affiliates at any time or any place in that only 6 percent of defendant's sales are of wearing apparel, hardware, household appliances, sporting goods, cosmetics, etc., which are the line of goods sold by the plaintiffs or their affiliates; that the plaintiffs and affiliates have carried on none of their merchandising operations in the Fort Smith trade territory in particular, whereas the defendant's retail grocery operation has been carried on exclusively in Fort Smith.
Defendant further alleges that the words "IGA Shoppers Fair" have acquired a secondary meaning in the Fort Smith trade territory by means of advertising over radio and TV broadcasting stations and the newspapers, and in this manner has acquired valuable good will throughout the Fort Smith trade territory; that the words "Shoppers Fair" constitute a common name which the defendant had a right to appropriate in operation of its retail grocery store by using the trade name "IGA Shoppers Fair"; that the names "IGA Shoppers Fair" and "Shoppers Fair" are so dissimilar that no injury will result to the plaintiffs or affiliates by the defendant's use of its trade name, and that defendant commenced operations under the name "IGA Shoppers Fair" in good faith without prior knowledge of the use of the trade name "Shoppers Fair" by plaintiffs or affiliates.
On December 14, 1961, plaintiffs filed an amendment to their original complaint, in which they admitted that the plaintiff, Shoppers Fair of Arkansas, Inc., is a corporation organized under the laws of the State of Delaware, and maintains its principal offices in said state, that said plaintiff, Shoppers Fair of Arkansas, Inc., does no business in the State of Arkansas and does not maintain a place of business in the State of Arkansas at the present time.
On April 14, 1962, the plaintiffs filed a second amended complaint in which they reaffirmed and restated all allegations contained in the original complaint, and added as party plaintiffs the following:
Shoppers Fair of Baltimore, Inc. Shoppers Fair of Syracuse, Inc. Shoppers Fair of Rochester, Inc. Shoppers Fair of Evansville, Inc. Shoppers Fair of Indianapolis, Inc. Shoppers Fair of Detroit, Inc., Shoppers Fair of Akron, Inc., Shoppers Fair of Connecticut, Inc., Shoppers Fair of Flint, Inc., Shoppers Fair of Gary, Inc., Shoppers Fair of Columbus, Inc., Shoppers Fair of Dayton, Inc., Shoppers Fair of Saginaw, Inc., Shoppers Fair of South Bend, Inc., Shoppers Fair of West Vale, Inc., Shoppers Fair of Cleveland, Inc., Shoppers Fair of Wilmington, Inc., Shoppers Fair of East Detroit, Inc., Shoppers Fair of Livonia, Inc., Shoppers Fair of Pensacola, Inc., Shoppers Fair of Canton, Inc., Shoppers Fair of Down River, Inc., Shoppers Fair of Greece, Inc., Shoppers Fair of Speedway, Inc., Shoppers Fair of Battle Creek, Inc., Shoppers Fair of Jackson, Inc., Shoppers Fair of Lansing, Inc., and Mangel Stores Corporation.
The plaintiffs further alleged that all of the plaintiffs including the additional ones are corporations organized and existing under the laws of the State of Delaware and constitute the affiliated corporations referred to in the original complaint, and that Mangel Stores, Inc., is the parent corporation and is the owner of all outstanding common stock of each of the co-plaintiffs.
On May 21, 1962, the defendant filed its answer to the amended complaint, in which it reaffirmed and restated all the allegations and statements set forth in its original answer as to each added plaintiff set forth in the amended complaint.
The case was tried to the court on May 22 and 23, 1962, and at the conclusion of the presentation of the testimony, it was taken under advisement by the court subject to submission by the parties of briefs in support of their respective contentions. The briefs have been received, and the court, having considered the pleadings, the testimony adduced at the trial, the exhibits and briefs of counsel, now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.
The plaintiff, Mangel Stores, Inc., is a corporation incorporated under the laws of the State of Delaware with its principal office and place of business in New York City, New York.
The plaintiff, Shoppers Fair of Arkansas, Inc., is a corporation incorporated under the laws of the State of Delaware. On the 11th day of August, 1961, it filed its application with the Secretary of State of Arkansas for authority to do business in Arkansas. However, Shoppers Fair of Arkansas, Inc., does no business in the State of Arkansas and does not maintain a place of business in the State of Arkansas, but it has designated an agent for service of process, which agent is a resident of Little Rock, Arkansas.
The remaining co-plaintiffs are corporations incorporated under the laws of the State of Delaware with their principal offices and places of business in states other than the State of Arkansas.
The defendant is a corporation incorporated under the laws of the State of Arkansas with its principal office and place of business in the City of Fort Smith, Arkansas.
The amount in controversy in this cause exceeds the sum of $10,000.00, exclusive of interest and costs.
The plaintiff, Mangel Stores, Inc., hereinafter called Mangel, was incorporated in 1929 and has been in continuous operation since that date. Prior to 1956 Mangel was the parent corporation of a chain of downtown retail department stores with department stores downtown in the larger cities in several states. These department stores operated in a conventional manner to the extent that sales people were employed to wait on customers and sell items in each individual department.
Later in 1955 Mangel became aware of a falling-off of business in its downtown department stores, and its officers sought a new means of merchandising its usual department store items. At that time Mangel became interested in developing another method of merchandising retail items, which consists of a self-service discount type of operation similar to the operation of supermarkets located in suburban shopping centers. The virtue of this new operation was that it would allow the plaintiff to continue to sell high-quality national brands of merchandise at discount prices by eliminating the need of sales people along with increasing the volume of sales characteristic of supermarket types of operations.
Mangel adopted the name "Shoppers Fair," which was to be applied to each of these new supermarket-type department stores because it considered the name to be an apt description of this form of retail merchandising. Since it contemplated more than one of this type department store, it distinguished each Shoppers Fair corporation by adding its geographical location either by designation of the city or the state in which it was to carry on its operations. Although Mangel did not register this particular trade name, it investigated the possibility of prior appropriation, and did not find there had been any prior users of the trade name "Shoppers Fair."
The first of the new enterprises, designated "Shoppers Fair of Bridgeport, Inc.," commenced operations early in 1956, and since that date Mangel has caused to be incorporated an increasing number of Shoppers Fair discount department stores in various states throughout eastern, southern,...
To continue reading
Request your trial
-
Farm Service, Inc. v. U.S. Steel Corp.
...Hansen's Laboratory v. Kirk, 12 F.Supp. 361, 364 (E.D.Pa.1935); "Shopper's Fair" for grocery supermarkets, Shopper's Fair of Arkansas v. Sanders Co., 207 F.Supp. 718 (W.D.Ark.1962); "Car Care" for an automobile repair and accessories business, Car Care, Inc. v. D. H. Holmes Co., (La.App.) 1......
-
Southwestern Bell T. Co. v. Nationwide Ind. Dir. Serv., Inc.
...law of trademarks, trade names and unfair competition follows and is in accord with the general law. Shoppers Fair of Arkansas, Inc. v. Sanders Co., 207 F.Supp. 718, 725 (W.D.Ark.1962), aff'd, 328 F.2d 496 (8 Cir.), Liberty Mutual Ins. Co. v. Liberty Ins. Co. of Texas, 185 F.Supp. 895, 903 ......
-
Gaston's White River Resort v. Rush, Civ. No. 87-3060.
...law is orthodox and in accord with the general principles of the law of unfair competition. Shoppers Fair of Arkansas, Inc. v. Sanders Company, 207 F.Supp. 718, 134 U.S.P.Q. 545 (W.D.Ark.1962) aff'd; 328 F.2d 496, 140 U.S.P.Q. 637 (8th Cir. Ark.1964); Liberty Mutual Insurance Co. v. Liberty......
-
American Eutec. Weld. Alloys S. Co. v. Dytron Alloys Corp.
...takes place." Vanity Fair Mills, Inc. v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir. 1956) * * *. Cf. Shoppers Fair of Arkansas, Inc. v. Sanders Company, 207 F.Supp. 718, 725 (W.D.Ark.1962) (place where customers deceived). See Restatement, Conflict of Laws, § 6 Rosenberg, "Proposed Direct Act......