Tent, Inc. v. Burnham

• Decision Date: 26 November 1929
• Citation: 269 Mass. 211,168 N.E. 735
• Parties: THE TENT, Inc., v. BURNHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 211

168 N.E. 735

THE TENT, Inc.,

v.BURNHAM.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 26, 1929.

Appeal from Superior Court, Suffolk County; Keating, Judge.

Suit by The Tent, Incorporated, against Dana Burnham. From the decree, plaintiff appeals. Affirmed.

Maurice Jacobs, of Boston, for appellant.

E. C. Parks, of Boston, for appellee.

CROSBY, J.

This is a bill in equity to restrain the defendant from using or advertising the name ‘Hatherly Beach Tent,’ or from using the word ‘Tent,’ in any name in connection with any place conducted by the defendant for dancing or for the sale of refreshments.

The case was referred to a master, who found the following facts: The plaintiff, a Massachusetts corporation, since 1924, has operated a dance hall in Boston under the trade name of ‘The Tent,’ and another in Weymouth, since April 1929, under the name of ‘The Tent by the Sea.’ The defendant's dance hall at Hatherly Beach in Scituate is about twelve miles distant from that of the plaintiff in Weymouth, and twenty-four or twenty-five miles distant from the plaintiff's dance hall in Boston, and is separated from that of the plaintiff in Weymouth by the towns of Hingham and Cohasset. During the seasons of 1927 and 1928 the plaintiff conducted a dance hall in Scituate in the premises now occupied by the defendant, under the trade name of ‘The Tent by the Sea,’ to which a large number of people ‘came from various places in and around Boston and as far as Providence and Worcester.’ The main road from Boston passed by the plaintiff's place of business at Weymouth before passing the defendant's dance hall. There are three dance halls nearer to the plaintiff's place than that of the defendant.

There is no finding that the plaintiff has lost, or is likely to lose, any patronage by reason of the operation of the dance hall at Hatherly Beach by the defendant under the name of ‘Hatherly Beach Tent.’ There can be no recovery unless it appears that there has been a wrongful appropriation by the defendant of business which belongs to the plaintiff. It was said in Kaufman v. Kaufman, 223 Mass. 104, at page 106-107, 111 N. E. 691, that ‘The mere use of a trade name which one person has found highly effective in bringing his goods to the favorable attention of the public in one business territory, by another person in another business territory, constitutes no actionable wrong. Actual or probable deception of the public to the harm of the plaintiff is the basis of the action.’ C. A. Briggs Co. v. National Wafer Co., 215 Mass. 100, 102 N. E. 87, Ann. Cas. 1914C, 926. It is plain from the facts found that the defendant's place of business is not within the same business territory as that of the plaintiff, and the defendant has not adopted any sign or style of advertising in any way resembling that of the plaintiff....