Silbert v. Kerstein
| Citation | 66 U.S.P.Q. 168,62 N.E.2d 109,318 Mass. 476 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Decision Date | 03 July 1945 |
| Parties | MYRON S. SILBERT v. EDWARD KERSTEIN & others. |
May 9, 1945.
Present: FIELD, C.
J., LUMMUS, QUA RONAN, & WILKINS, JJ.
Name. Unfair Competition.
Unlawful Interference.
A plaintiff operating under the name "Emerson Fashions" a small department store selling women's apparel of all kinds was not entitled to an injunction against the defendant's later use of the name "Emerson's
Shoes" in conducting a small retail shoe store near the plaintiff's store, where it appeared that competition between the two stores was negligible, that the defendant had no intent to deceive the public into thinking that his store was, or was connected with, the plaintiff's store, and that there was nothing in the nature or appearance of the defendant's store or in his method of conducting it which would be reasonably likely to cause one using due care to confuse it with the plaintiff's store.
BILL IN EQUITY filed in the Superior Court on August 9, 1944. The suit was heard by Broadhurst, J.
C. Silbert, for the plaintiff. H. Snyder, for the defendants.
This is an appeal from a final decree dismissing a bill in equity brought by the plaintiff, doing business under the name of "Emerson Fashions," to restrain the defendants from doing business under the name of "Emerson's Shoes" on the ground that they are unfairly competing with him.
The judge made a report of the material facts. The plaintiff challenges the correctness of many of those findings. We have a report of all the evidence, and all questions of law, fact and discretion are open for our decision. It is our duty to examine the evidence and reach our own conclusions, giving weight to the findings of the judge based on oral testimony unless shown to be plainly wrong, and drawing our own inferences from facts admitted or found irrespective of inferences drawn by the trial judge. Lowell Bar Association v. Loeb, 315 Mass. 176 . Jurewicz v. Jurewicz, 317 Mass. 512 . Kerwin v. Donaghy, 317 Mass. 559 .
We summarize the material facts, as shown by the record, as follows: The plaintiff since late in 1940 has conducted a store in the shopping district of Newtonville under the name of "Emerson Fashions" and has filed a certificate under G. L. (Ter. Ed.) c. 110, Section 5, stating that he was conducting the store under that name. The store is located on the corner of two streets. The plaintiff sells all kinds of wearing apparel for women, misses and children, together with hosiery, gloves, handbags, costume jewelry, cosmetics, yarns, children's books and toys. He sells a few trade name brands of shoes for women and girls, one trade name brand of shoes for children, one brand of women's slippers, and rubbers and overshoes for women and children. He does not deal in shoes for men or for boys over six years of age. The plaintiff advertises in two local newspapers. Some of these advertisements mentioned shoes, but many of them did not. The plaintiff has done some direct mail advertising, principally before Christmas, in which there was only a meager reference to footwear except in one circular mailed in 1941, which was prepared by a manufacturer of women's shoes and which described only that make of shoes. His total sales up to October 1, 1944, were $122,616, and the estimated total sales of shoes were $10,000, of which, during the last year, three fourths were nonrationed shoes. His monthly sales of hosiery amounted to about $950. The plaintiff employed a manager, a sales manager and two sales clerks on full time, a part-time clerk each day, and extra clerks for the holiday seasons.
The defendant Kerstein purchased in January, 1938, from one Emerson a shoe store located in the Allston district of Boston, together with the right to use the name "Emerson Shoe Store" and to assign or to license others to use that name. Kerstein filed a certificate with the city clerk of Boston that he was conducting the store under that name. The individual defendants formed the corporate defendant in 1940. It purchased a shoe store in Arlington which since January, 1941, it conducted as "Emerson's Shoes." It filed a certificate with the town clerk of Arlington that it was doing business under that name. The corporation leased a store on Walnut Street in Newtonville, and since August, 1944, it has maintained the store under the name of "Emerson's Shoes." Shortly before this store was opened, a certificate signed by the three individual defendants, who placed after their signatures the abbreviated titles of their respective offices in the corporate defendant, was filed with the city clerk of Newton that the business was conducted under that name although the corporate defendant, the owner of the store, was not mentioned in this certificate. The business of all three stores is the sale of shoes for men, women, boys, girls and children, hosiery, and "findings" such as shoe polish, shoe trees, laces and heel pads. None of the defendants sells feminine wearing apparel other than shoes and hosiery. The corporate defendant is the sole distributor in Newtonville of several brands of men's, women's, youths' and children's shoes. Its store is located on the opposite side of the street from the plaintiff's store and is about four hundred feet distant therefrom. It is the only store selling footwear and hosiery exclusively in that part of Newtonville. The corporate defendant employs only one full-time employee in its Newtonville store. The sales of shoes at this store up to October 17, 1944, amounted to $4,055.50 and its sales of "findings" including hosiery amounted to $35. The women's, misses' and children's shoes sold by both parties are of about the same quality and price, but there is a difference in the kinds and styles of shoes sold by them.
The judge found that in certain instances mistakes in the delivery to the plaintiff of mail, goods or messages that were intended for the corporate defendant were due to carelessness on the part of third persons. There was no intent on the part of the defendants to deceive the public into believing that the Newtonville store was the plaintiff's store or that it was in any way connected with it.
Competition between them in the sale of hosiery and footwear has been and will probably continue to be so slight as to be negligible. There is nothing about the nature of the business of the corporate defendant, the appearance of its store, outside or inside its name or its advertising that would be likely to create a reasonable probability that persons using due...
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