110 N.J. Eq. 438 | N.J. Ct. of Ch. | 1930
I am going to determine this matter now. I am convinced that the complainants are not entitled to the relief prayed by them. In the first place I consider that there could not be any relief granted to both the complainants even though relief should be granted on the proofs in this case. There is manifestly a misjoinder of complainants in this suit. The suit is filed in behalf of Blue Goose Auto Service, Incorporated, and Henry H. Levin. It appears from the proofs in this case that the complainant Levin engaged in business in the city of Newark under the trade name Blue Goose Super Service Station. It was intimated by said complainant that he filed a certificate of such trade name in the county of Essex. There is no proof before me to that effect. If he filed such certificate he ought to have been able to establish the fact by proper proof. But whether he filed the certificate or not appears to me a matter of inconsequence for the purpose of my determination of this cause. Levin, it appears, was engaged with some other business concern — a corporation, previous to the name of the Blue Goose Auto Service being used, and several years ago effected a change of the corporate name to Blue Goose Auto Service, Incorporated. The corporation was engaged in business in what was then known as the town of West Hoboken, which subsequently became the city of Union City by reason of the consolidation of the town of West Hoboken with the town of Union. The place of business fronted on the Hudson county boulevard and ran through to a street called Kerrigan avenue. The nature of the business the complainant corporation was engaged in was the servicing of automobiles; not only the furnishing of gas and accessories such as oil, tires and the like, but also giving attention to brakes on autos. In other words, it was intended within the word servicing to comprehend all attention required to be given to automobiles in order to make them in good condition for operating. The business of such corporation was discontinued in August, 1926. The complainant Levin first testified that it was discontinued in 1927; he stated the business was operated from 1925 to 1927. Subsequently *440
he corrected his testimony so as to make the period from 1925 to August, 1926. The place of business which had been conducted by the Blue Goose Auto Service, Incorporated, was after August, 1926, operated for laundering of cars (washing of cars I assume is meant) by other parties, but the name Blue Goose continued to remain on some part of the building, although not to the extent it had been displayed previously. Levin, it appears, established himself in business in the city of Newark. He says he opened such place of business in August, 1927. Whether he is mistaken in that or whether it was August, 1926, I deem it unnecessary to comment upon at this time. He says he has been engaged in business there for a period of three years under the name Blue Goose Super Service Station. Counsel for complainants has laid stress in this case upon the use of the words BlueGoose and the word Super as applied to the word Service.
Throughout the conduct of the case he seemed to emphasize the word Super as having a distinctive meaning, and that the wordsBlue Goose had a distinctive meaning, valuable to the complainants. But the proofs manifest that the complainant Levin did not so regard it in so far as his own place of business was concerned because the name Blue Goose was used in the operation of several other automobile stations which were enumerated in this case, without objection by him. It was stated that the wordsBlue Goose were used in connection with stations in Bergenfield, New Jersey, and Hackensack, New Jersey. It was stated also that Levin's brothers owned or controlled one of such places. His brothers conducted another place mentioned, although Levin is said to have had an interest of some kind in that place. It also appears that one of the stations thus established — using the name Blue Goose, was sold to Tidewater Company about a year or more ago. It is indicated the Tidewater Company continued the use of the name Blue Goose in connection with that station. That was the Bergenfield station. The complainant Levin says that in September, 1928, Davis, whom it is said operated the defendant corporation and substantially controlled it, visited, with his wife, Levin's plant in *441
Newark, and there made known to Levin that he, Davis, was interested in opening up a place of his own and was desirous of inspecting the class of brake-machine Levin had installed in his place of business. Considerable has been said by counsel for the complainants in his summation apparently intended to indicate to the court that the brake appliances made use of by the complainants in the operation of the Newark business were of special value. Stress was laid upon the brake-machine in Levin's Newark plant. It was said there was but one other of its particular make within a great distance from the complainants' plant in Newark. It was said by one of the witnesses that the only other kind of such brake was in New York. Yet, I recall there was something said by Levin to the effect there was another such brake machine in Newark or Elizabeth. But that appears to me to be a matter of little significance in this case. The court is not concerned with the equipment utilized by these parties in the conduct of their places of business. The use of the equipment cannot be of any particular significance in determining the issue in this case. The principal grievance of complainants, if established by the proofs, is the use of the words Blue Goose
and the use of the word Super as applied to the word Service
in the servicing of automobiles, or the holding out to the public of those names, and particularly the word Super as applied to the servicing of automobiles. All of the other matters alluded to by counsel in argument, with respect to the character of equipment, is merely incidental to the conduct of the business by the respective parties. The defendant does not use the particular kind of brake machine used by complainants. Defendant uses an entirely different manufacture of brake machine. There cannot therefore be said to be any simulation by defendant of complainants' equipment in that respect; but there is no complaint herein, as I recall, of simulation of equipment. The principal charge seems to be, as stated by counsel for complainants — unfair trade, and an infringement of a trade-mark or trade name. I cannot appreciate from the proofs in this case that the complainants have any exclusive right to the use of *442
the words Blue Goose or the use of the word Super or the wordService in connection with their conduct of the business in the servicing of automobiles. The complainant Levin was very careless in his testimony, in a considerable number of instances. In one breath he testified that a certain happening or incident took place in the month of April, and within a few moments thereafter, in another breath he testified such happening or incident took place in the month of March, and shortly thereafter he testified he could not recall exactly when it took place. During the course of Levin's examination as a witness I was impelled to admonish him that he was required to tell the truth, the whole truth and nothing but the truth. I am convinced he did not tell the whole truth; he was conjecturing as to considerable of the matters he was testifying to. Counsel for the complainants experienced much difficulty, clearly observable to the court, and clearly manifest to counsel himself, in his endeavor to obtain from the complainant Levin, testimony as to the case which was set up in the bill of complaint, which counsel appreciated he was obliged to elicit proofs of to substantiate the complaint. It was due to no fault of counsel for the complainants that he did not elicit all the proofs he endeavored to elicit; he tried very diligently to do so. Counsel appreciated that the burden rested upon the complainants to substantiate the allegations of the complaint in order to obtain the relief sought in the prayer of the bill. The prayer of the bill inter alia is that the defendant, Blue Goose Super Service Station, Incorporated, its officers, agents and servants, be forever restrained from furnishing auto service to the motor public, and from using said name within the State of New Jersey in connection with such business; also that the defendant, its officers, servants and agents, be forever restrained from using in the conduct of its auto service station any names or styles similar to the name Blue Goose Auto Service, Incorporated, or Blue Goose Super Service Station, or any imitation of the name of complainant company, or the trade name of complainant Levin — Blue Goose Super Service Station. Complainant certainly seeks pretty broad relief when he prays the court to *443
grant relief as prayed in the bill, based on the allegations of the bill, and upon the proofs in this case. If the complainant Levin was seriously desirous of protecting the name he says he adopted, he might, instead of registering the name in the clerk's office of the county of Essex, as he says he did, but which has not been proved, have incorporated his business establishment in Newark and thus endeavor to pre-empt to himself the use of the desired name, as against others. He was not a stranger to corporate form of business; he had previously conducted the business in which he was engaged in West Hoboken for several years prior to going to the city of Newark, as a corporation. The defendant resorted to the expediency of incorporating the business he established, under the name which he now uses therefor. If Levin had pre-empted to himself by corporate means, or perhaps by registered trade name under the Names act, the name which he says he appropriated, the defendant may not have been able to make use of such name by incorporating another company and making use of the same name. There has been considerable perjury in this case. Counsel for the complainants has adverted to what he regards as an important piece of testimony to sustain the complainants' claim to show that there was unfair competition upon the part of the defendant as against the complainant Levin — the testimony of one Spaulding A. Smith. I was obliged to adjudge such witness guilty of contempt in facia curiae because of his perjured testimony. I cannot give any credence to the testimony of such witness. It is a well known principle of law that if the court has just reason to believe that a witness is untruthful in one respect in his testimony, the court may feel warranted in considering him to be untruthful in many respects, or perhaps in all respects of his testimony. It is within the province of the court — where, as here, there is no jury — to determine where the truth lies, and to determine which witnesses are to be believed in the case. Such principle of law is referred to in Riehl v.Riehl, a decision by the chancellor, reported in