Williamson v. Answer Phone of Jacksonville, Inc.
| Decision Date | 16 February 1960 |
| Docket Number | No. B-215,B-215 |
| Citation | 118 So.2d 248 |
| Court | Florida District Court of Appeals |
| Parties | Ruth S. WILLIAMSON, doing business as Telephone Answering Service, Appellant, v. ANSWER PHONE OF JACKSONVILLE, INC., a corporation, Dan I. Scarborough, Maurice C. McLeod, and Southern Bell Telephone & Telegraph Company, a corporation, Appellees. |
Bedell, Bedell & Dittmar, Jacksonville, for appellant.
Clifford T. Inglis and Geo. H. Baldwin, Jacksonville, for appellees Answer Phone of Jacksonville, Inc., et al.
Loftin & Wahl and Nathan H. Wilson, Jacksonville, for appellee Southern Bell Tel. & Tel. Co.
This is an interlocutory appeal from an order sustaining motions to dismiss one count of plaintiff's complaint. The complaint contains a second count which was also attacked in the same motions which the chancellor denied as to such count. This appeal does not involve the second count or the action of the chancellor denying the motions to dismiss it.
The sole question is whether or not the first count (or Count I, as it is designated in the order) contains allegations which set forth a cause of action in behalf of plaintiff against the several defendants. We deem that it does and that the chancellor was in error in granting the motions to dismiss it.
According to the facts set forth in Count I which must be treated as true by the chancellor and this court, the plaintiff owns and operates in Jacksonville a telephone secretarial bureau under the trade name of 'Telephone Answering Service'. It is further alleged that such 'bureau' has been operating under this trade name since 1946 and has been successful in establishing an extensive and substantial reputation in the community by reason of honest and efficient operation of the business. It is also said that plaintiff's business had come to be recognized and identified by the trade name used, which also became associated with plaintiff's good reputation in the minds of the members of the public. Other allegations detail the acts and attitudes of the defendants which are mentioned herein in the following paragraphs of this opinion.
Defendant, Answer Phone of Jacksonville, Inc., a Florida corporation, chartered in October, 1957, has since that time been engaged in the operation of a telephone secretarial retarial bureau at 430 West Monroe Street in Jacksonville. It has operated under a number of trade names which include designations as 'Accurate', 'Acme', 'Bell Telephone', 'Duval', 'Florida Phone', and 'Jacksonville', each followed by the words 'Answering Service'. Other trade names have been 'Attorneys' Secretarial Bureau' and 'Professional Telephone Secretarial Service'. This defendant will be referred to as the 'defendant competitor'. The defendants Scarborough and McLeod are officers and agents of the defendant competitor. The other defendant, Southern Bell Telephone Company, a corporation, will be referred to as the 'telephone company'. The latter supplies telephone service in Jacksonville and publishes the telephone directory which also contains display advertisements of its subscribers.
At the time plaintiff's predecessor, her late husband, adopted the trade name 'Telephone Answering Service' in connection with the telephone secretarial bureau, the words of the trade name were not being used by anyone in the Jacksonville area. The plaintiff and her late husband spent much in advertising this trade name and acquainting the Jacksonville public with the services offered by the business. Because of this advertising, the trade name became identified in the minds of the members of the public with the high quality of secretarial services offered by plaintiff's business. It is said that the words of the trade name acquired a secondary meaning in the Jacksonville area 'in that they have become and are generally accepted as words identifying the business presently operated by plaintiff'.
The defendant competitor and its officers and agents named as defendants, knowing the secondary meaning of plaintiff's trade name, published and distributed certain advertising 'designed to infringe and capitalize on the good name and reputation' of plaintiff. It is alleged that such was done 'with the intention and purpose of defrauding the public and injuring plaintiff and her business' and that it was 'further designed to mislead the public into believing' that the services offered by the competitor defendant are those of the plaintiff.
In September, 1958 the defendant competitor and the named defendant officers and agents of the competitor caused to be published in the telephone directory distributed at that time the following advertisement:
Telephone
Answering Service
24 Hour Service
430 W. Monroe
They also published in newspapers in Jacksonville, including the issues of the Florida Times-Union of August 29 and 30, 1958, the following advertisement:
Telephone Answering
Service
The telephone company caused the advertisement in its telephone directory mentioned above to be published 'with full knowledge of the intention and purpose of [the other] defendants to defraud the public and injure the plaintiff as aforesaid'. It is said that this was done by the telephone company after it had been notified by the plaintiff that such publication would infringe on plaintiff's trade name.
Prior to September, 1958, the telephone company had listed in the classified portion of its directory the plaintiff and her competitors under the classification as 'telephone secretarial bureaus'. However, in September, 1958 this classification designation was changed to 'telephone answering service'. Such change in classification title is alleged to have been made by the telephone company 'for the purpose of aiding and abetting [the other] defendants--in the accomplishment of their intention and purpose to defraud the public and injure plaintiff.'
It is further alleged that the telephone directory and newspaper advertisements 'have confused the public and mislead members of the public to believe that the services offered by' defendant competitor are the services offered by plaintiff's business since 1946.
There are allegations of loss of income and profits on business she would have received except for the alleged actions of defendants and also that plaintiff has been forced to spend much in advertising 'in an endeavor to counteract the confusion and false impression' created by the defendants' advertising. It is said that 'such false, fraudulent and misleading advertising by the defendants' will cause irreparable damage and loss of business to the plaintiff.
Injunctive relief and money damages are sought.
We have italicized those...
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