Western Auto Supply Co. v. Knox

• Decision Date: 31 December 1937
• Docket Number: No. 1573,1574.,1573
• Parties: WESTERN AUTO SUPPLY CO. v. KNOX. SAME v. KENYON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

93 F.2d 850 (1937)

WESTERN AUTO SUPPLY CO. v. KNOX.

SAME v. KENYON et al.

Nos. 1573, 1574.

Circuit Court of Appeals, Tenth Circuit.

December 31, 1937.

Bower Broaddus, of Muskogee, Okl. (McAllister, Humphrey, Pew & Broaddus, of Kansas City, Mo., Simons, McKnight, Simons, Mitchell & McKnight, of Enid, Okl., and Broaddus & Fite, of Muskogee, Okl., on the brief), for appellants.

H. G. McKeever, of Enid, Okl. (McKeever, Stewart & McKeever, of Enid, Okl., on the brief), for appellee Charles E. Knox.

E. L. Richardson, of Lawton, Okl. (Richardson & Cline, of Lawton, Okl., on the brief), for appellees Jack and Glen Kenyon.

Before BRATTON and WILLIAMS, Circuit Judges, and SYMES, District Judge.

BRATTON, Circuit Judge.

Western Auto Supply Company, a corporation organized under the laws of the state of Missouri, is plaintiff in these two cases of unfair trade practices. The defendants are different, but the cases are so similar that disposition may be made of them in one opinion.

It is alleged in the bill in the first case that in 1909 George Pepperdine organized Western Auto Supply Company as an unincorporated company at Kansas City, and, using that trade-name, conducted the business of furnishing supplies and accessories for all makes of automobiles; that in 1914 Pepperdine and others caused plaintiff to be incorporated; that plaintiff thereupon took over the name and good will of the unincorporated company and ever since has engaged in the business of furnishing tires, supplies, and accessories for all makes of automobiles; that it operates 173 stores located in 28 different states; that three of such stores are in Oklahoma, the first having been opened in Tulsa in 1925, the second in Oklahoma City in 1934, and the third in Tulsa during the same year; that, in addition to its corporate name, it uses the trade-name Western Auto Stores at all of such stores; that at the time such corporate name and trade-name were adopted there was no identical or similar name in use by any other company or individual engaged in that kind of business; that plaintiff has expended more than seven million dollars in nation-wide advertising in catalogues and newspapers, and has become well known under such corporate name and trade-name; that it is one of the largest exclusive distributors of automobile accessories and supplies in the United States; that it has developed a large line of special brands of merchandise, such as tires, tubes, batteries, oils, radios, and other items, all of which bear its copyrighted and registered trademark and the company's name; that from 1912 to 1914 the unincorporated company mailed catalogues of its wares to prospective purchasers throughout the state of Oklahoma, and from 1914 to 1935 plaintiff continued the practice which resulted in a successful mail order business in that state with large profits; that, by reason of their long, continued, and wide use, the corporate name and trade-name of plaintiff signify and indicate to the public throughout the United States and in the State of Oklahoma that the goods offered and sold are those manufactured and sold by plaintiff, and have that excellence of quality which conforms to the reputation of plaintiff for furnishing merchandise of superior grade; that under its rule of business purchases made at one store will be made good or the money refunded at any other store, which is widely understood by tourists; that in the year 1933 defendant Charles E. Knox established a store in Enid, Okl., under the name Western Auto Salvage Company, and is conducting the business of furnishing automobile accessories, tires, radios, and other supplies within that city and adjacent territory; that he subsequently opened other like stores in Perry, Kingfisher, Woodward, Ponca City, and Blackwell, all in that state; that, in addition, he uses trucks from which such merchandise is sold under such trade-name; that he handles, sells, and vends a grade of merchandise which is inferior to that furnished by plaintiff, including secondhand wares; that the trade-name of defendant is deceptively similar to the corporate name and trade-name of plaintiff; that by reason of such similarity great confusion is caused to the public and to the customers and patrons of plaintiff concerning the identity and quality of merchandise furnished by plaintiff; that, in consequence of such confusion, numerous persons have repeatedly called upon plaintiff to replace merchandise furnished by defendant, believing that it had been sold at stores of plaintiff, and that the purchasers were entitled to receive replacement under the general policy of plaintiff that its customers be satisfied or the money refunded; that the trade-name and good will of plaintiff in the state of Oklahoma is valuable; and that the acts of defendant have damaged plaintiff.

The bill in the second case contains substantially identical allegations with two exceptions. It is charged that in 1935 defendants Jack Kenyon and Glen Kenyon established a store at Anadarko, Okl., under the name Western Auto Parts Company and are conducting the business of furnishing automobile accessories, tires, radios, and other supplies within the city and throughout the adjacent trade territory; that thereafter they opened like stores in Lindsey, Frederick, Hollis, Lawton, and Healdton, all in that state; and that, in addition, they are using trucks from which such merchandise is furnished. It is not charged that they sell secondhand or any other inferior grade of merchandise.

Separate motions to dismiss in the nature of demurrers were lodged against the bills. The court sustained the motions; plaintiff declined to plead further; and decrees of dismissal were...