155 Ill. 127 | Ill. | 1895
delivered the opinion of the court*.
The foregoing statement contains the substance of all that we regard as the material allegations of the bill. Averments of simple matters of evidence that do not amount to averments of the facts that they tend to prove, and of immaterial matters, and statements of mere opinions and conclusions of the pleader, are largely omitted therefrom. These may, properly, all be ignored. The demurrer admits only the facts that are well pleaded.
The bill, as we read it, is notable for that which it fails to charge. It may well be that the Elgin Creamery Company has no factory wherein butter is manufactured, by the name of “Elgin Creamery.” Non constat, that it does not own and operate three creameries located within the territory of said township that are designated and known as “Creamery A,” “Creamery B” and “Creamery C,” or by other distinctive appellations, and still other creameries besides these, there located, that are not known by any special names. All that is contained in the bill of complaint may be true, and yet it be the fact that the Elgin Creamery Company is manufacturing all the butter that it sells, or offers for sale, at a factory or factories owned and operated by itself and located in the township of Elgin. Said allegations may all be true, and yet it be the fact that all the butter it deals in is butter that is made within the territorial limits of Elgin township by farmers living within that township, either at the respective creameries of each individual farmer, or at some creamery or creameries owned and operated in some other way. A creamery is simply a place where butter is made, and it is not the size or capacity of the factory that makes it a creamery. The defendant corporation is authorized by its charter “to operate creameries and manufacture and deal in butter.” By its-articles of incorporation, read in the light of its corporate name, it holds itself out to its customers and to the public as making and dealing in, or dealing in, genuine Elgin butter, or butter manufactured in Elgin or out of milk and dairy products that are known in the market as Elgin milk and dairy products. No averment in the bill shows that it is not so doing, or that it is not doing what it was incorporated to do and what it represents itself as doing. It must be regarded, then, for the purposes of this case, that the Elgin Creamery Company is manufacturing, dealing in and selling only genuine Elgin butter, made within the township and out of milk and dairy supplies there produced.
It is not charged or claimed in the bill that the promoters of or the owners of the stock in the Elgin Creamery Company adopted the corporate name by which it was incorporated, for the purpose of misleading or deceiving or otherwise wronging or injuring either its own customers, or the public, or the Elgin Butter Company, complainant herein. No fraud and no wrongful intention are alleged in the bill, and no facts are stated from which any inference of fraud naturally and necessarily arises. Fraud must always be alleged and proven. It is never presumed. Fair and healthy competition in business is beneficial to the public, and redounds to the welfare of the State. It is not justly to be regarded as an index of fraud. The case at bar, then, is to be considered as free from any question of fraud.
The gist of the complaint seems to be, that the use by the Elgin Creamery Company of its corporate name in its business of manufacturing, dealing in and selling butter has a tendency to, and does, confuse and mislead dealers in the market and the public at large, and lead them into the false belief that the corporation incorporated as “Elgin Creamery Company” is one and the same with the corporation incorporated as “The Elgin Butter Company.” The bill proceeds upon the theory that the name “The Elgin Butter Company,” and the claimed addition thereto of the words “Proprietor of the Elgin creamery,” are the trade name and trade-mark of complainant, and that it has the exclusive right and property in both said corporate name and said addition, and that no other person or corporation has a legal right to combine the word “Elgin” with either the word “butter” or the word “creamery,” in conducting his or its business.
The act concerning corporations (chap. 32, sec. 2,) provides that the Secretary of State shall not issue license to form two corporations or companies having the same name. We think that the issuing of licenses to the two corporations involved in this controversy was not in disregard of this statutory provision. The Elgin Butter Company was the first of the two corporations to become incorporated. It has a right to demand protection in the exclusive use of its corporate name, “The Elgin Butter Company,” which is both its corporate name and its trade name. But “Elgin Creamery Company” is quite a different name from “The Elgin Butter Company.” Ordinary attention will enable any one to discriminate between them.
It cannot be admitted that complainant, by using upon its letter-heads, price-lists and other stationery, in connection with its corporate name of “The Elgin Butter Company,” the additional words “Proprietor of the Elgin Creamery,” has acquired such a property in and monopoly of the words “Elgin,” “butter” and “creamery,” as that no one else can lawfully use the first of said words in connection with either of the other two—even when they can truthfully be so used. Nor can it be conceded that farmers in and around the city of Elgin cannot sell the butter that they make, as “Elgin butter,” nor are they precluded from truthfully designating the places where they severally make their butter as creameries at Elgin. And no more can such a concession be allowed as against the right of any other person or corporation engaged in the business of manufacturing, dealing in or selling butter made at a creamery in Elgin, and out of milk and dairy supplies produced in Elgin. As was said by the Supreme Court of the United States in Canal Co. v. Clark, 13 Wall. 311: “It must, then, be considered as sound doctrine that no one can apply a name of a district or country to a well-known article of commerce, and obtain thereby such an exclusive right to the application as to prevent others inhabiting the district, or dealing in similar articles coming from the district, from using the same designation.” Like doctrine has been announced by this court and in equally emphatic language. Candee, Swan & Co. v. Deere & Co. 54 Ill. 439 ; Bolander v. Peterson, 136 id. 215. And to the same effect are the cases of Glendon Iron Co. v. Uhler, 75 Pa. St. 467, Laughman’s Appeal, 128 id.. 1, and Brown Chemical Co. v. Meyer, 139 U. S. 540.
Even if the corporate names of the two corporations are somewhat similar, yet, in the absence of any intent, act or artifice to mislead dealers in the market or the public at large as to the identity of the corporations, the Elgin Creamery Company has the same right to use its corporate name in the transaction of its business that the Elgin Butter Company has to use its corporate name. It would seem that the same rule should apply to corporations, in this regard, that obtains in respect to natural persons, and in the absence of any fraudulent or wrongful intention or act, or any contract to prohibit it, every natural person has the absolute right to use his own name in his own business. Meneely v. Meneely, 62 N. Y. 427.
The cases of Merchants' Detective Ass. v. Detective Mercantile Agency, 25 Ill. App. 250, Montgomery v. Thompson, L. R. 16 App. Cas. (H. of L.) 217, Croft v. Day, 7 Beav. 84, and El Modello Cigar Manf. Co. v. Gato, 25 Fla. 886, are not here in point, since in each of those cases there was present the element of fraudulent acts and intention.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.