Yellow Cab Co. v. Creasman
| Decision Date | 08 June 1923 |
| Docket Number | 547. |
| Citation | 117 S.E. 787 |
| Parties | 185 N.C. 551, 28 A.L.R. 109 v. CREASMAN. YELLOW CAB CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; T. D. Bryson, Judge.
Suit by the Yellow Cab Company against J. H. Creasman. From a judgment dissolving a preliminary order, plaintiff appeals. Reversed.
Where the owner of a taxicab line had built up a reputation and good will for his business, which used taxicabs painted yellow, a temporary injunction against use of similar taxicabs by another will be continued until the final hearing.
The action, and the temporary order heretofore issued in furtherance of same, is to restrain defendant from using on the streets of Asheville for public hire any automobile or taxicabs painted yellow, and made to resemble or imitate in form and color the taxicabs now and heretofore in use by the plaintiff, the Yellow Cab Company, etc. On the hearing there was judgment dissolving the preliminary order, and plaintiff excepted and appealed.
Harkins & Van Winkle, and Guy Weaver, all of Asheville, for appellant.
F. A Sondley and Mark W. Brown, both of Asheville, for appellee.
At the hearing there were facts submitted on part of plaintiff tending to show:
That prior to summer 1922, the public service automobile business in the city of Asheville was in an unsatisfactory condition from lack of uniform rates, overcharges, and other discriminations, which was a source of considerable trouble to the police department of the city of Asheville, and concern to the public interests.
That with a view of remedying this condition, the chamber of commerce, through its secretary, N. Buckner, in conjunction with the owners of the Asheville Daily Citizen, invited the Yellow Cab Manufacturing Company, of Chicago, Ill., to send representatives to Asheville for the purpose of, if found expedient, arranging with some local person, to place the Yellow Cab Taxi Service upon the streets of the city of Asheville.
That representatives of the Yellow Cab Manufacturing Company visited Asheville in response to this invitation, and, at the instance of the secretary of the chamber of commerce, called upon the defendant, J. H. Creasman, and endeavored to induce the said Creasman to inaugurate the Yellow Cab Taxi Service in the city, but the said Creasman declined to do so.
That thereupon the said representative called upon H. C. Allen, who was then in the transfer business in the city, who at once organized the plaintiff, Yellow Cab Company, made up of local stockholders, and inaugurated in the city of Asheville Yellow Cab Taxi Service, buying eleven metered cabs of the peculiar and distinctive type of cabs manufactured by the said Yellow Cab Manufacturing Company, of the yellow or orange color combined with black.
That, prior to the time plaintiff's taxicabs were put upon the streets of Asheville, no person had ever operated a cab of like design, or color, or combination of colors, and no public service automobile of such color or combination of colors, had ever been operated in the city, and no cab carrying a meter, showing the mileage traversed and fare charged, had ever been used in said city.
That the plaintiff company began an extensive and advertising campaign, and, by furnishing to the public prompt, efficient, and courteous service at uniform and comparatively low rates, very soon built up in the said city of Asheville a large and satisfied patronage, and acquired a very valuable good will.
That the distinctive taxicab service which the plaintiff gave to the public and its business came to be identified and symbolized by the peculiar and distinctive color, or combination of colors, style, dress, and general visual appearance of its yellow taxicabs.
That the defendant Creasman had been engaged in the public automobile service in the city of Asheville, for some 10 or 12 years prior to the institution of this action, and had identified his service by the use of automobiles, most of which were painted a greyish or blackish color; that he had never, up to the time of the acts complained of, operated any public service cabs of black and yellow color, nor had any other person used in the public service business in the city of Asheville, any automobiles of a yellow color, or combination of yellow and black, prior to the inauguration of the Yellow Cab Taxi Service by the plaintiff in this case.
That some time about the middle of November, 1922, after the plaintiff had built up a good patronage, and had established a good will, and its business had come to be identified, generally recognized, and symbolized by the peculiar color, or combination of colors, of yellow and black or orange and black, of its cabs, the defendant Creasman put upon the streets of the city of Asheville, two taxicabs of practically the same structural design, form, and appearance as the cabs of the plaintiff, and colored in almost exactly the same shade of yellow as those of the plaintiff; that the bodies of the plaintiff's cabs were painted yellow, with the hoods, fenders, and tops black, these being the predominating and distinguishing features; that the defendant's two cabs were likewise put upon the streets with yellow bodies, black hoods, fenders and tops, in close simulation and imitation of the cabs of the plaintiff.
That the defendant's cabs, as described above, are in general appearance such an imitation and simulation of those used by the plaintiff company as is calculated and likely to mislead and deceive the general public into believing that the cabs of the defendant are the cabs of the plaintiff company, and rendering it improbable that the casual observer would be able to distinguish the cabs of the respective parties; that the cabs of the respective parties, similarly colored and dressed as they are, can be distinguished only by careful comparison and inspection.
That, notwithstanding the fact that the defendant operated his two cabs only two days upon the streets of the city of Asheville before the restraining order in this case was issued, it appears that certain intending patrons of the Yellow Cab Company were actually deceived and led to believe that the cabs of the defendant were the cabs of the plaintiff, to the plaintiff's injury and damage.
That, while there are numerous points of slight variation and differences in both the details of structural design and shades of color between the cabs of the plaintiff and defendant, these differences are not sufficient to render the respective cabs distinctive from ordinary observation; that the outstanding distinctive features of the yellow color in combination with black, on the cabs of both plaintiff and defendant, are so similar as to render the differences and variations insignificant and unnoticeable, the general appearance of both being a yellow cab.
As apposite to these averments, it is now the generally accepted position that a...
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