72 So. 102 | Ala. | 1916
And in applying this test, viz., the likelihood of deception of an ordinary person exercising ordinary care, as was justly observed by Lacombe, J., “regard must be had to the class of persons who purchase the particular articles for consumption, and to the circumstances ordinarily attending their purchase.”—N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 77 Fed. Fed. 869, 871, 23 C. C. A. 554, 556. Nor is “a nice discrimination to be expected from the ordinary purchaser.”—Internat. Silver Co. v. Rogers’ Corp., 67 N. J. Eq. 646, 60 Atl. 187, 110 Am. St. Rep. 506, 510, 3 Ann. Cas. 804.
Of course, the mere existence of differences which are patent to the observant and well informed does not necessarily amount to a sufficient differentiation, and similarity in the main distinguishing features will usually be sufficient to constitute infringement or unfair competition.—Boardman v. Meriden Brittania Co., 35 Conn. 402, 95 Am. Dec. 270; Pratt’s Appeal, 117 Pa. 401, 11 Atl. 878, 2 Am. St. Rep. 676; Saxlehner v. Eisner, etc., Co., 179 U. S. 19, 21 Sup. Ct. 7, 45 L. Ed. 60; 38 Cyc. 790b.
Our conclusion is fully sustained and vindicated by the consensus of judicial opinion as illustrated by a great number of analogous cases: Kyle v. Perfection Mattress Co., 127 Ala. 39, 28 South. 545, 50 L. R. A. 628, 85 Am. St. Rep. 78; Weinstock v. Marks, 109 Cal. 529, 42 Pac. 142, 30 L. R. A. 182, 50 Am. St. Rep. 57; G. G. Fox Co. v. Glynn, 191 Mass. 344, 78 N. E. 89, 9 L. R. A. (N. S.) 1096, 114 Am. St. Rep. 619; Vulcan v. Myers, 139 N. Y. 364, 34 N. E. 904; Lawrence Co. v. Tennessee Co., 138 U. S. 549, 11 Sup. Ct. 396, 34 L. Ed. 997; McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Northwestern Consol. Co. v. Callam (C. C.) 177 Fed. 786; Mellwood Distilling Co. v. Harper (C. C.) 167 Fed. 389; Hansen v. Siegel Cooper Co. (C. C.) 106 Fed. 691; Centaur Co. v. Killenberger (C. C.) 87 Fed. 725; Fairbank Co. v. Bell Co., 77 Fed. 869, 23 C. C. A. 554; Enoch Morgan’s Sons v. Ward, 152 Fed. 690, 81 C. C. A. 616, 12 L. R. A. (N. S.) 729; Same v. Whittier Coburn Co. (C. C.) 118 Fed. 657; 38 Cyc. 780, note 31. See, also, Mr. Freeman’s note in 85 Am. St. Rep. 83-125, on trademark cases.
An inspection of the infringed and infringing devices exhibited by the bill of complaint will illustrate the obnoxious character of the imitation complained of far better than mere verbal description can do. Doubtless the learned trial judge was misled by the obvious difference in the names “Boston Shoe Shop” and “McBroom Shoe Shop.” Such a difference might, indeed, be sufficient to avoid the conclusion of unfairness, but for the fact that the business of the Boston Shoe Shop, as well as its peculiar advertising device, had for many years been associated with the name of its founder, R. A. McBroom, and hence the advertisement of a “McBroom Shoe Shop,” by the same peculiar device, would bear upon its face a powerful and persuasive suggestion that the original shoe shop was now doing business under the new name — a suggestion by no means weakened by the seductive addition of a single syllable to the slogan, “We fix ’em quick.” As said by Tyson, J., in Kyle v. Perfection Mattress Co., 127 Ala.
It results that there is equity in the bill, and the general demurrer was erroneously sustained. Let the decree of the lower court be reversed, and a decree be here rendered overruling the demurrer to the bill of complaint.
Reversed, rendered, and remanded.