Vassar College v. Loose-Wiles Biscuit Co.

• Decision Date: 08 July 1912
• Docket Number: 3,578.
• Parties: VASSAR COLLEGE v. LOOSE-WILES BISCUIT CO. et al.
• Court: U.S. District Court — Western District of Missouri

197 F. 982

VASSAR COLLEGE v. LOOSE-WILES BISCUIT CO. et al.

No. 3,578.

United States District Court, W.D. Missouri, Western Division.

July 8, 1912

E. F Ware, of Kansas City, Kan., Ralph Nelson, of Coeur d'Alene. Idaho, and E. H. Ware, of Kansas City, Kan., for complainant.

Frank Hagerman and Kimbrough Stone, both of Kansas City, Mo., for defendants.

VAN VALKENBURGH, District Judge.

The complainant Vassar College, is a corporation created and existing under and by virtue of the laws of the state of New York, with its principal place of business at the city of Poughkeepsie, in that state. It is a well-known institution of learning for the education in the arts and sciences of such women as may pass examination for admittance thereto. It takes its name from its founder, Matthew Vassar, by whom it was liberally endowed. The defendant, Loose-Wiles Biscuit Company, is a corporation organized and existing under the laws of the state of Missouri, with its principal place of business at Kansas City, in said state. The defendant J. S Loose is its president, the defendant J. H. Wiles its vice president, and the defendant F. B. houston its manager. The defendant corporation is engaged in the manufacture and sale of biscuit and kindred products on an extensive scale, and among other such products, of candy, one variety of which is called 'Vassar Chocolates,' which has been widely advertised. It is substantially charged in the bill that the packages containing that candy and the advertisements thereof employ the name of Vassar, a likeness of a young lady in scholastic garb and wearing a mortarboard hat, an imitation of the college pennant, a college yell, and an imitation of the college seal, with the words 'Vassar Chocolates' and 'Always fresh' substituted for the words 'Vassar College' and 'Purity and Wisdom,' respectively. Complainant charges that it is thereby brought into public contempt and ridicule, and that because thereof, its business is injured, and its graduates and students humiliated.

For its relief complainant prays:

'A writ of injunction to be directed to the defendants, and each of them, touching the matter in question, and restraining them all and singly, their agents, attorneys, and employes, and particularly enjoining the said individual defendants, as officers and directors of said defendant corporation, from using the word 'Vassar' in their business, and from using any word, sign, symbol, emblem, or device relating in any manner to the complainant; or in using, advertising, or publishing anything suggestive thereof or connected therewith, or in printing any card, label, device, words, or symbols of such import, as is herein set forth, or in imitating or simulating its seal, colors, or emblems. And that the said individual defendants be particularly enjoined from taking any official or personal action that would tend to violate the rights of the complainant, regarding the matter herein complained of.'

To this bill the defendants have demurred, stating the following grounds:

'(1) The complainant has not in and by said bill made or stated any such cause as does or ought to entitle it to any such relief as is thereby sought and prayed for against these defendants.

'(2) The complainant has in and by said bill improperly joined the Loose-wiles Biscuit Company, a corporation, with these defendants, whereas there is no joint cause of action averred.'

In the bill the cause of action, if any, against the individual defendants, springs solely from their official relation to the corporation. No separate individual acts are charged against them.

As will be gathered from what has been stated, as well as from an inspection of the bill in its entirety, the complaint entered partakes largely of the nature of libel, and also suggests an invasion of the 'right of privacy,' but complainant in its argument and brief expressly denies that either the one or the other lies at the foundation of its suit. In their brief counsel for complainant say:

'Vassar College does not base its claim on a right to privacy because it is a public institution, but it does base it upon a 'right to be let alone' unless some public purpose is subserved. The college, its name, its seal, and its belongings are private property, and, if irreparable injury, incapable of measurement, ensues from not being let alone, then, if no public right or interest is involved, the defendants should be enjoined.'

Also:

'It is a public institution, and it claims that the acts of the defendants damage the property and the use of the property of the complainant.'

And again:

'We have not alleged a libel, and upon our allegation in the complaint we may not be entitled to an action at law; but a person may have no action at common law, and yet one in equity.'

It is quite obvious that the complainant could not well invoke the right of privacy, whatever that right may be determined to be, from the irreconcilable conflict of opinions and views of courts of last resort in various jurisdictions, because, as is admitted, it is not only a corporation, but a public institution, depending upon and inviting wide-spread publicity for the fullest return from the exercise of its functions as an institution of learning. Where a person is a public character, the right of privacy disappears. Corliss v. E. W. Walker Co. (C.C.) 57 F. 434; s.c., 64 F. 280, 31 L.R.A. 283. As said by counsel for defendants in their brief:

'The plaintiff is a corporation, and therefore can have no 'right of privacy' in its name, as the entire basis of the right of privacy cases is an injury to the feelings or sensibilities of the party. A corporation can have no such ground for relief.'

However, as complainant expressly disclaims reliance upon this right, the court is relieved from the necessity of attempting to bring harmony out of the conflict of decisions on this subject. It becomes necessary to determine, therefore, in what respect the rights of complainant, of which this court can take cognizance in this proceeding, have been invaded. The bill, among other things, contends that 'anything that would affect the name of 'Vassar,' or bring it into ridicule or derision, would be an injury which would be irreparable, and would affect the value of the plant and the value of its use. ' It is asserted that the use of this name and certain pictures in connection with advertisements, among other things, is calculated to create in the public mind the impression that the chocolates sold by the defendants are a particular favorite at Vassar College and with the students and alumnae thereof; that mortarboard hats, a distinctive scholastic garb, are peculiar to Vassar students; that the portrayal of a building in the form of a Greek Temple, certain college colors, and a seal with certain inscriptions paraphrasing those upon the seal of the complainant corporation, tend to provoke discussion and reproach, to produce criticism and ridicule, and are matters of regret, pain, and annoyance to the students and to the graduates of the college, and tend to depreciate the college in the eyes of the public. As to the graduates and students, it may be said that they are not parties to this suit, and this character of injury to feelings is scarcely a matter of legal remedy. While these allegations involve the annoyance which springs from wounded sensibilities, and while the 'right to be let alone' inheres in the right to privacy and would seem to involve an assertion of that right, nevertheless it is inferable from the bill that the real injury for which relief is prayed is sought to be founded upon the assumption that the college is thereby depreciated in the eyes of the public, and the complainant is caused to lose its standing and supremacy as an educational institution, and thus to suffer a loss which it cannot estimate.

This injury would seem to be either libel or in the nature of libel, but here we are met with two difficulties. The first is that in this country a court of equity is without jurisdiction to restrain the publication of libel.

The second is that, as this is a corporation and as the publication does not appear to be defamatory or libelous per se, its right to recover in such an action may well be doubted. It would seem to be necessary in order to support recovery that it should plead and prove special damages from the publication, and this, it expressly avers, it cannot do. Viewing the bill as, in effect, having charged libel, would not the demurrer have to be sustained, first, because of want of jurisdiction of the subject-matter, and, second, because no cause of action has been stated, or according to the averments of the bill, can be stated? But counsel for complainant in their brief, as we have seen, expressly disclaim that they have charged a libel, but rather that the name, seal, and belongings of the college thus appropriated for advertising purposes are the private property of the complainant, and that if irreparable injury, incapable of measurement, ensues, then, if no public right or interest is involved, the defendant should be enjoined, and that this is true, even though complainant may have no action at common law or by statute. It may be observed in passing that there is presented no controversy respecting a trade-mark, nor a trade-name, nor the use of such in unfair competition. The complainant is not engaged in the manufacture or sale of candy, nor is its business injuriously affected in such a sense.

It becomes pertinent to inquire whether as a public corporate institution it has such a property right in the name 'Vassar' and in the other insignia displayed by the defendants in their advertisements as would entitle it to restrain the use of such in any...