Western Auto Supply Co. v. Western Auto Supply Co.

• Decision Date: 29 January 1936
• Citation: 13 F. Supp. 525
• Parties: WESTERN AUTO SUPPLY CO. v. WESTERN AUTO SUPPLY CO.
• Court: U.S. District Court — District of New Hampshire

13 F. Supp. 525

WESTERN AUTO SUPPLY CO. v. WESTERN AUTO SUPPLY CO.

District Court, D. New Hampshire.

January 29, 1936.

Ralph Davis, of McLane, Davis & Carlton, of Manchester, N. H., for plaintiff.

Wyman, Starr, Booth & Wadleigh, of Manchester, N. H., for defendant.

MORRIS, District Judge.

This is an action alleging unfair competition in the use of the plaintiff's trade-name, seeking a permanent injunction and damages.

The plaintiff, Western Auto Supply Company, was incorporated in 1914 under the laws of the state of Missouri and has always used and still uses that name and the shorter name, "Western Auto Stores," in the advertising and sale of automobile supplies and accessories.

The defendant, the Western Auto Supply Company, is a corporation organized under the laws of the state of New Hampshire and doing business at Manchester in said state, and at Portland in the state of Maine. It was incorporated July 5, 1934, by James Rosenblum and Wilfred Lessard of Manchester, N. H., and Max Cohen of Lowell, Mass. It has also used a shorter name, "Western Auto Stores."

Plaintiff's bill alleges, in brief, that for several years past it has advertised its business throughout the United States by means of catalogues and newspaper advertising at an expense of many thousands of dollars; that it has become well known under its corporate name, "Western Auto Supply Company," and its more popularly known name, "Western Auto Stores," as a nation-wide distributor of automobile supplies and accessories; that its business by direct selling and by sales through catalogues extends into every state of the United States; that in the year 1934 it did a gross business in excess of $17,000,000, and has established through sound merchandising and skillful management a widespread favorable reputation with the public resulting in the creation of a valuable good will; that the stores which serve the public in this locality are the following: 130 Brookline avenue, Boston; 118 Brighton avenue, Boston; 127 Federal street, Boston; 628 Mass avenue, Cambridge, Mass.; 200 Pleasant street, Malden, Mass.; 1536 Hancock street, Quincy, Mass.; 21 Market street, Lynn, Mass.; that it has expended large sums of money in advertising its stores and its products in newspapers having a large circulation in this district; that it does a mail order business in addition to its sales from its local stores.

The bill further alleges that immediately upon its incorporation the defendant opened a store at 1202 Elm street in Manchester, N. H., for the purpose of competing and selling the same general merchandise as is sold by the plaintiff; that the use by the defendant of its corporate name and the name "Western Auto Stores" was in fact an imitation of the plaintiff's names; that the plaintiff believes and therefore avers that the use of the names of the plaintiff in the manner above set forth by the defendant is a willful, wrongful, fraudulent, and malicious undertaking and contrivance to secure and avail itself of the good will, reputation, and business of the plaintiff, and that it interferes with, impairs and diminishes the plaintiff's business; that the continued use of the plaintiff's name in the manner aforesaid deceives customers of the plaintiff and is a fraud upon the public; that the plaintiff has been damaged by the continued wrong of the defendant to the amount in excess of $3,000 and will in the future be damaged in sums greatly in excess of said amount; and that the continued damage to the plaintiff cannot be accurately estimated and is therefore irreparable. The bill concludes with a prayer for a permanent injunction and damages.

Findings of Fact.

I find as a fact that the plaintiff is one of the leading distributors in the country of auto supplies and accessories; that it has 41 stores in the eastern district along the Atlantic seaboard of which 7 are located in Boston and its immediate vicinity. The annual gross sales of the 41 stores based upon 11 monthly reports amounts to $4,500,000. These figures do not include the mail order business. The business done at the 7 stores above mentioned approximates $675,000 which results from extensive advertising through newspapers, catalogues, and circulars and pamphlets distributed to individuals making store purchases. The annual cost of advertising is about 4½ per cent. of the gross volume of its sales. Its advertising cost in the Boston district for 11 months of the year 1935 was in excess of $15,000, done through the Boston American and Boston Traveler newspapers having a wide circulation throughout the New England states. Many catalogues were sent to people in New Hampshire towns having a population of less than 10,000. Their stores are patronized by Maine and New Hampshire people. Some mail order business was done in the latter state; but the evidence does not disclose the amount.

The evidence does disclose that the plaintiff received orders from persons in 48 different towns in the state of New Hampshire. Most of its business is done with garage owners and automobile dealers, and it sells some articles at prices less than wholesale price for the same articles found in defendant's catalogue, only one of which was ever prepared and sent out by the defendant.

It does not appear that the plaintiff ever attempted to open any stores in the state of New Hampshire until some time in 1935 when its district manager from the Boston district went to Manchester and examined a vacant store with the thought in mind of opening a branch in that city, but nothing further was done.

The defendant immediately upon its incorporation July 5, 1934, opened a store at 1202 Elm street, Manchester, N. H., selling the same general line of merchandise sold by the plaintiff. It used the exact name of the plaintiff, namely, "Western Auto Supply Company," and also the shorter name, "Western Auto Stores."

I find that it was the intention of the defendant to imitate the plaintiff's trade-name and secure to itself some of the good will that had been built up by the plaintiff through its extensive advertising.

The defendant's manager testified that the store did only a wholesale business, but from further examination it appeared that any one who came in with money could buy articles at retail.

An examination of photographs of the defendant's Manchester store discloses in large letters the sign, "Western Auto Supply Company," and on the display window the words, "Wholesale Division."

Whether this was...