156 Ga. 297 | Ga. | 1923
Carter Electric Company, a corporation, filed an equitable petition asking that W. B. Carter and S. E. Carter be temporarily and permanently enjoined from prosecuting an application to obtain a charter under the name of W. B. Carter Electric Company, and from organizing and doing business under that name, and from infringing upon the name of petitioner; alleging that the use of the proposed name would deceive the public as to the identity of the proposed corporation, and would, by reason of similarity of names, mislead and deceive the general public, ■especially those in the habit of dealing with petitioner, when as a matter of fact they would be dealing with said proposed corporation. The petitioner further alleged that in this way, its business patronage and good will would be taken away from it by said proposed corporation, and that the damages which the petitioner would incur cannot be calculated, and said damage would be irreparable. No acts of unfair competition were complained of, and the petitioner did not ask that the defendant be enjoined from doing anything except using the name of W. B. Carter Electric Company. The petition does not allege that the. defendant has resorted to any artifice, or any act of fraud or deception, and does not allege that any misrepresentation has been made. The only act complained of by the petitioner is that the defendants are preparing to organize a corporation under the name of W. B. Carter Electric Company, and to conduct a general electrical business, which is the same business that petitioner is engaged in. It is not alleged that the defendants, now plaintiffs in error, are new in the electrical business. The court granted an interlocutory injunction as follows: “The application for interlocutory injunction coming on for hearing, after hearing evidence and argument of counsel, it is considered, ordered, and adjudged that the defendants be and they are hereby enjoined from prosecuting their petition for a charter for W. B. Carter Electric Company, and
The evidence offered by the petitioner consisted of an affidavit of L. L. Shivers, president of the plaintiff corporation, an affidavit of Frank S. McGaughey, vice-president of plaintiff corporation, and the petition and order granting to the plaintiff a charter and an amendment thereto. The defendants offered no evidence. They insist that they are honestly and fairly using their own name in their own business, and that they have the right to so use their own name, and that the plaintiff (defendant in error) has no monopoly upon the name “ Carter ” and no exclusive right to the electrical business.
The question now before this court is a matter of very frequent adjudication, and various phases of the question have been passed upon. As appears from the foregoing statement of facts, Carter Electric Company, a corporation engaged in the business.of dealing in electrical supplies and electrical construction, a duly chartered corporation which has been engaged in business for many years in the City of Atlanta, and which succeeded from a small beginning in creating a business amounting to more than one million dollars a year, filed the petition in this case to enjoin W. B. Carter and S. E. Carter from obtaining a charter to do a similar business under the name and style of TV. B. Carter Electric Company. The trial judge granted a temporary restraining order, and later an interlocutory injunction forbidding TV. B. Carter and S. E. Carter from prosecuting their application for incorporation until a jury could pass upon the facts. Upon the interlocutory hearing the only evidence introduced by the petitioner was to the effect that the corporation, Carter Electric Company, which had originally done business as the TV, E. Carter Electric Company, had conducted “ an active business in buying, selling, and dealing
There is no allegation in the petition for injunction that the defendants W. B. Carter and S. E. Carter or either of them have done any act or intended to do any act which of itself would wrongfully interfere with the petitioner’s business. Nor is there any allegation that the petitioners for incorporation intend to sell their goods as goods manufactured by or handled by the petitioner, Carter Electric Company. For this reason the questions presented bj the record are reduced to these: First: Can the defendants who are named Carter use their own name or the name of either of them in conducting their own business under their own name, because it appears to be the same business in which a corporation which uses the same surname is now and has for many years been engaged? Second: Are the names so.similar as to be identical? Third: 'Conceding that an individual may use his own name for any legitimate purpose which may be of profit to him, does such use extend to corporations? Or, to put the question more closely to the facts in the record, does the right of the use of his individual name go to such an extent that he may use his individual name for the purpose of designating a corporation in which he is interested, regardless of the fact that a part of the corporate name which he seeks to use has already been subjected to a prior use by another corporation engaged in the same business?
It seems to have been long settled that an individual is entitled to the use of his own name in any business in which he may'
In the case of Turton v. Turton, L. R. 42 Ch. Div. 128, decided in 1889, in dealing with the case of Turton v. Turton, in which the plaintiffs did business under the name of Thomas Turton & Son, but were generally known as Turton & Sons, and John Turton, who had taken his sons in business with him, was sought to be restrained because of the similarity of surnames, the one business being known as Thomás Turton & Sons and the other as John Turton & Sons, Lord Esher said: “ Now it is not alleged — certainly it is not proved against him —that he did anything in the way of his trade which tended to give airy other meaning to the name
“ Therefore the first question óf law in the case is this: Supposing that, and that only, is done by the defendant, but nevertheless some people, or, if you please, many people, in the market do from time to time give orders intending them for the plaintiff’s firm, which on account of the similarity in names go to the defendant’s firm, are the plaintiffs entitled to an injunction? If there had been anything more than the mere use of the name, by the defendant in the way I have stated, that there might have been a necessity for an injunction, I think, cannot be denied. Here are two firms, Thomas Turton & Sons, and John Turton & Sons. Well, careless people may not notice the difference of Christian names and may look more to the words ‘ Turton & Sons ’ which are the same in both. That might be so. Therefore, for this purpose, I assume that the names are sufficiently alike to cause those blunders in trade; but they are blunders of the people who make
“Now it is said that the plaintiffs have a trade name and a property in their name. I doubt about the property, though they have this right: that no man shall wrongfully interfere with their name. But they have no right to say that a man may not rightfully use his own name. I cannot conceive that the law is such. If the law was such, the law would be most extraordinary and, to my mind, most unjust — to prevent a man using his own name; and I must say this: that all the arguments that have been used in this case would have been equally applicable if there had nothing been said about sons, and if one man were carrying on business as Thomas Turton under the circumstances in which Thomas Turton & Sons were carrying on their business, and another man named John Turton were to come and carry on his own business simply in his own name. Therefore the proposition goes to this length: that if one man is in business and has so carried on his business that his name has become a value in the market, another man must not use his own name. If that other man comes and carries on business, he must discard his own name and take a false name. The proposition seems to me so monstrous, that the statement of it carries its own refutation. Therefore, upon principle, I should say it is perfectly clear that if all that a.man does is to carry on the same business, and to state how he is carrying it on — that statement being the simple truth, and he does nothing more with regard to the respective names, he is doing no wrong. He is doing what he has an absolute right by the law of England
The Supreme Court of the United States has in many cases recognized and stated the law to be that where the only confusion in the minds of the public results from the similarity in names, injunction will not be granted. That court holds that there must be something beyond the mere similarity in names. In the case of Howe Scale Co. v. Wycoff, 198 U. S. 118 (25 Sup. Ct. 609, 49 L. ed. 972), Mr. Chief Justice Fuller, delivering the opinion of the court, it was held that “Every man has a right to use his name reasonably and honestly in every way, whether in a firm or corporation; nor is a person obliged to abandon the use of his name or to unreasonably restrict it. It is not the use, but dishonesty in the use, of the name that is condemned. . . One corporation cannot restrain another from using in its corporate title a name to which others have a common right. Where persons or corporations have a right to use a name, courts will not interfere where the only confusion results' from a similarity of names and not from the manner of the use. The essence of the wrong in unfair competition consists in the sale of the goods of one person for that of another; and if defendant is not attempting to' palm off its goods as those, of complainant, the action fails. . . But it is well settled that a personal name cannot be exclusively appropriated by any one as against others having a right to use it; and as the name ' Remington ’ is an ordinary family surname, it was manifestly incapable of exclusive appropriation as a valid trade-mark, and its registration as such could not in itself give it validity. Brown Chemical Company v. Meyer, 139 U. S. 540; Singer Manufacturing Company v. June Manufacturing Company, 163 U. S. 169; Elgin National Watch Company v. Illinois Watch Case Company, 179 U. S. 665. “ The general rule and the restrictions upon it are thus stated in Brown Chemical Company v. Meyer. There plaintiff had adopted as a trade-mark for its medicine the words ' Brown’s Iron Bitters,’ and the defendants used upon their medicine the words 'Brown’s Iron Tonic.’ This court, after commenting upon the descriptive character of the words 'Iron Tonic,’ and confirming the defendants’ right to the use of these, said: ' It is hardly necessary to say that an ordinary surname cannot be appropriated as a trade-mark by any
“In Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, the rule is thus laid down by Mr. Justice White: ‘ Although “ every one has the absolute right to use his own name honestly in his own business, even though he may thereby incidentally interfere with and injure the business of another having the same name, in such case the inconvenience or loss to which those having a common right are subjected is damnum absque injuria.” But although he may thus use his name he cannot resort to any artifice, or do any act calculated to mislead the public as to the identity of the business firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of names.’ ”
The defendants in error filed a cross-bill of exceptions, assigning-error upon the order of the court ruling out portions of the evidence of Frank S. McGaughey and L. S. Shivers. The evidence of both witnesses was substantially the same and as follows: “Deponent further believes that the use of the name W. B. Carter Electric Company is calculated to deceive the public as to the identity of the proposed company, and would mislead and deceive the general public, especially those in the habit of dealing with the W. E. Carter Electric Company and the Carter Electric Com
Judgment reversed on the main hill of exceptions, and affirmed on the cross-hill.