Wills v. Alpine Val. Ski Area, Inc.

• Decision Date: 11 January 1963
• Docket Number: No. 83,83
• Citation: 118 N.W.2d 954,369 Mich. 23
• Parties: , 136 U.S.P.Q. 425 Robert F. WILLS and Henry H. Gleisner, individually and d/b/a 'Alpine Ski & Sport Shop' and St. Lawrence Sales, Inc., a Michigan corporation, Plaintiffs and Appellants. v. ALPINE VALLEY SKI AREA, INC., a Michigan corporation, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 954

118 N.W.2d 954

369 Mich. 23, 136 U.S.P.Q. 425

Robert F. WILLS and Henry H. Gleisner, individually and

d/b/a 'Alpine Ski & Sport Shop' and St. Lawrence

Sales, Inc., a Michigan corporation, Plaintiffs and Appellants. v. ALPINE VALLEY SKI AREA, INC., a Michigan corporation,

Defendant and Appellee.

No. 83.

Supreme Court of Michigan.

Jan. 11, 1963.

Jack W. Hutson, Royal Oak, for appellants.

Joseph F. Kosik, Pontiac, Howlett, Hartman & Beier, Pontiac, of counsel, for appellee.

Before the Entire Bench, except O'HARA, J.

SOURIS, Justice (for affirmance).

The individual plaintiffs have conducted a retail store in the city of Birmingham in Oakland county since 1957 under the assumed name of Alpine Ski & Sport Shop. In July of 1960 the defendant was incorporated, and since November of that year has done business, as Alpine Valley Ski Area, Inc. Plaintiffs appeal from the chancellor's denial of their prayers for injunctive relief to restrain defendant's use in its name of the word 'Alpine' and for money damages.

From the proofs it appears that plaintiffs sell athletic clothing and equipment, including that used by skiers, and they also rent and repair ski equipment. The defendant corporation operates a recreational area during the winter months where the public may go to ski. Defendant rents ski equipment at its place of business and a concessionaire, operating under his own distinctive name, sells some skiing equipment on defendant's premises. Plaintiffs' witnesses testified that beginning in November of 1960 and extending through the middle of February of 1961, plaintiffs' employees received 127 telephone calls intended for defendant. Some of the callers requested to speak to employees of defendant or made inquiry concerning such employees. It appears from the proofs that defendant's business, located in a rural area in the county of Oakland about 20 miles from plaintiffs' store, was serviced by an independent telephone company and that defendant's telephone service was not operative during part of this period. Furthermore, its telephone number was not listed in metropolitan telephone books where normally it would be expected to be found.

Plaintiffs' proofs included evidence that some of their customers had inquired whether the defendant's ski area was owned by the plaintiffs. Plaintiffs' advertising consultant testified that even he thought there was some connection between the ski area and his client and that when he learned there was none he altered the services he performed for plaintiffs in order to define more clearly the nature of the plaintiffs' business.

The chancellor concluded that plaintiffs' proofs failed to establish any actual and substantial injury or threat thereof. He also concluded that plaintiffs failed to prove such confusion in the public which would justify the issuance of an injunction as prayed. While recognizing that plaintiffs experienced some annoyance from the inquiries received by them shortly after defendant commenced its operations, he found that their proofs did not establish an injury for which legal redress was warranted.

Plaintiffs rely principally upon First National Bank & Trust Co. of Kalamazoo v. First National Credit Bureau, Inc., 364 Mich. 521, 111 N.W.2d 880; Belvidere Land Co. v. Owen Park Plaza, Inc., 362 Mich. 107, 106 N.W.2d 380; and 220 Bagley Corp. v. Julius Freud Land Co., 317 Mich. 470, 27 N.W.2d 59. In each of those cases, it is significant to note that the parties were engaged in business either directly competitive or so closely related that confusion by the public or the likelihood thereof caused, or was likely to cause, actual and substantial injury to the plaintiff. In the First National Bank case, the bank operated a charge account service for a large number of local retail stores thereby involving it in...