99 Neb. 217 | Neb. | 1915
Tlie plaintiff, a corporation, seeks to- enjoin the defendants, Frank S. Allen and Ida Ford, from doing business under the firm name of “The Basket Store.” Plaintiff alleges that its place of business is at 1020 P street. It is conducting eight stores in Lincoln. They are described in the plaintiff’s petition as “Basket Store” No. 1; “Basket Store” No. 2; “Basket Store” No. 3; “Basket Store” No. 4; “Basket, Store” No. 5; “Basket Store” No. 6; - “Basket Store” No. 7; “Basket Store” No. 8. Plaintiff alleges that it has been continuously in the business of buying and selling groceries and meats at retail since the 18th day of March, 1908, and that it has used for its trade-name at the several places of business, which it names in its petition, the words “Basket Store,” that the scope of territory in which the plaintiff does business includes all the city of Lincoln, University Place, Havelock, College View,
An examination of the evidence would seem to show that the plaintiff’s business has become valuable by reason of the fact that the purchaser. of goods is attracted by the method of doing business and the financial advantage which may result to him. He is likely to say to himself that, if he goes and pays cash at that kind of a store for such goods as he can purchase, he will get the goods for less than their retail price; that other persons who buy there will get the goods which they purchase at less than the retail price; that one of the reasons that he will get the goods at less than the retail price is because, where the store is a basket store, it does not carry the goods to the home of the purchaser. He carries the goods himself, or procures a method of transfer. The purchaser may say to himself, so long as I deal at the basket store, I will get the g'oods for a less price by reason of the fact that the store is not put to the expensó of carrying goods over a wide expanse of territory and to many purchasers, some of whom never pay. A basket store sells strictly for cash. There is, therefore, no loss by reason of failure to collect. Also, it may be said that the quality of the goods will be
The use of the descriptive words may not be defended upon the ground that they constitute a trade-mark; at the same time it would seem to be unfair that one may obtain the business of another when the chief value in such business is the name. The plaintiff, with his eight stores of the same name, has built up a large and prosperous business, as it appears from the evidence. If the defendants séek to take advantage of the name under which the plaintiff has been doing business, it is, to say the least, unfair. If theirs is a good store, they can build up a reputation of their own.
In the case of Miskell v. Prokop, 58 Neb. 628, this court held that a trade-name might be acquired. The first paragraph of the syllabus reads: “A right to the exclusive use in the particular locality of a trade-name or a sign may be acquired.” In that case, however, the judgment was for the defendant. The controversy was about the right to use the term “Racket Store.” The defendant conducted its business under the name “New York Racket Store.” This court lield that there was a distinction between “New York Racket Store” and “Racket Store,” and that a careful examination of the words would prevent the public from being deceived. This court said: “In the present case we think the question upon which the decision must turn is, was the defendant’s sign, taken as a whole, such a simulation of that of the plaintiff as to work the mischief attributed to it, or well calculated to so do?” The doctrine is clearly laid down, however, that there is no right to deceive the public or to injure a merchant by the adoption of the peculiar name under which he does” business. See Beebe v. Tollerton & Stetson Co., 117 Ia. 593.
In Regent Shoe Mfg. Co. v. Haaher, 75, Neb. 426, this court held that, where a mercantile company has acquired a trade-name in a particular locality, it is entitled to protection against unfair competition in its particular line
We are unable to discover a sufficient reason for setting aside tbe judgment of the district court in favor of the plaintiff. The judgment of the district court is
Affirmed.