Goldberg v. Goldberg, 159 Ga. 761

159 Ga. 761 | Ga. | 1925

Beck, P. J.

(After stating the foregoing facts.) Under the evidence in this case and the deductions which the trial judge- was authorized to draw from it, the judgment of the court below must be affirmed. It is unnecessary to discuss here the principles underlying this decision. In cases cited below the questions involved have been discussed in decisions by this court and other courts of this country. A full discussion of one of the main questions underlying the case will be found in the decision in the case of Saunders System v. Drive It Yourself Co., 158 Ga. 1 (123 S. E. 132), where the writer of the opinion, Mr. Justice Hines, fully discussed the questions presented by the record in that case. That decision and the authorities'there cited render a discussion of the law involved in this case unnecessary. But in addition to that case special reference may also be made to 38 Cyc. 769-773, 807 et seq., 813, and the eases referred to in support of the text. See also the following: Howe Scale Co. v. Wyckoff, 198 U. S. 118 (25 Sup. Ct. 609, 49 L. ed. 972); Reddaway v. Banham, A. C. 199, 65 L. J. Q. B. 381; Godillot v. Am. Grocery Co., 71 Fed. 873 (4); Whitley Grocery Co. v. McCaw Mfg. Co., 105 Ga. 839 (32 S. E. 113); Bates Numbering Mach. Co. v. Bates Mfg. Co., 178 Fed. 681 (102 C. C. A. 181); Van Houten v. Hooten Cocoa, 130 Fed. 600; Bissell Chilled Plow Works v. Bissell Plow Co., 121 Fed. 366; Samuels v. Spitzer, 177 Mass. 226 (58 N. E. 693); Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169 (16 Sup. Ct. 1002, 41 L. ed. 118).

Judgment affirmed.

All the Justices concur, except Bussell, C. J., and Hill, J., dissenting. Bussell, C. J.

I am unable to concur in the conclusion reached by my associates in this case. I think the ruling and judgment in the case at bar is controlled by the decision of the court in Carter v. Carter Electric Co., 156 Ga. 297 (119 S. E. 737), for that was a case dealing with the use of one’s own name; whereas the case of Saunders System v. Drive It Yourself Co., 158 Ga. 1 (supra), has no reference to and does not attempt to deal with the question of one’s use of his own name. This is recognized, because it is pointed out in the opinion that there was a distinction between the doctrine of the authorities cited as to the use of a trade-name not involving the use of one’s own name and cases in which the use of one’s own name is involved. Judge Hines, delivering the opinion of the court, very properly ruled that “there is nothing to the contrary in Carter v. Carter Electric Co. [supra], in which the use of one’s own name was involved.” ' In the other case cited, the trial judge’s aeti.on in enjoining the defendants from using the words “Drive It Yourself” and the oval trade-mark design employed by them on their letter-heads, advertisements, stationery, and signs on their place of business, or as a part of their name was, as I think, properly affirmed; and his action in restricting the injunction so as to in-elude only the uses just set forth was, I think, very properly reversed. As said in the opinion, “if the defendants were wrongfully using the trade-name of the plaintiff they should be enjoined from its use in toto, and not only partially. They certainly should not be permitted to place its trade-name over the front of their building, whether in or out of the oval referred to. The defendants should have been enjoined from using the trade-name of the plaintiff in all ways.”

The Drive It Yourself case expressly excludes such a case as that now sub judice, not only by its reference to the Carter case, supra, in which it was distinctly held that every man has the right to use his own name for any honest purpose and that the surname of another is not subject to exclusive appropriation by any one although he may have the same surname.. The Drivé It Yourself case was one where both parties were trying to use those three words as a means of promoting their business; and the question dealt with in the case, and upon which the decision turned, was whether words were merely descriptive of the kind and character of the business and therefore could not be exclusively appropriated, or whether such a secondary meaning had attached to the words “Drive It Yourself” in behalf of the company first using that name in the City of Atlanta in the particular business in which it was engaged as that by such use the defendant brought its business into unfair competition with the prior user of the term “Drive It Yourself.” To show that this court, in passing upon the question, recognized that it was dealing only with a case in which unfair competition appeared from .the use of words which were entirely disconnected from the use of one’s own name, Judge Hines, after pointing out that geographical names are not subject to exclusive appropriation as trade-names (Rome Machine &c. Co. v. Davis Foundry, 135 Ga. 17, 68 S. E. 800), proceeded to say: “Whether the name, fDrive It Yourself,’ is composed of mere descriptive words, and for this reason is incapable of exclusive appropriation,, we need not decide in the present case. While generic names, geographical names, and names composed of words which are merely descriptive are incapable of exclusive appropriation, words or names which have a primary meaning of their own, such as words descriptive of the goods, service, or place where they are made, or the name of the maker, may nevertheless, by a wrong use in connection with the business of the particular trade, come to be understood by the public as designating the goods, service, or business of a particular trader. This is what is known as the doctrine of secondary meaning, and is the origin of the law of unfair competition, as distinguished from technical trade-marks or trade-names.” It will be observed that in this ruling no reference whatever is made to any case involving the use by one of the surname of another. And the doctrine of secondary meaning was applied to the specific service of business then under consideration; that is, the hiring of automobiles to persons to drive for themselves. That case turned upon the principle just stated, following a prior ruling in the first division of the opinion that “the court below properly enjoined the defendant from using the corporate or trade-name ,of the plaintiff, if either were capable of exclusive appropriation by the plaintiff.” In that case there was no question of using the individual surname of any one. Both parties to that cause were corporations.

In the ease at bar the only question is whether there can be an exclusive appropriation of the name Goldberg by either one of the two sets of Goldbergs, each of whom claim that to be their name. In the Garter ease we held that there could not be an exclusive appropriation of the name Carter as against the use by another Carter of his name in any legitimate way, although the second Carter proposed to carry on identically the same business under his name as that in which the other Cartep was already engaged. We held, of course, that any dishonest or fraudulent practice on the part of the second Carter, by which he should attempt to palm off goods made by his corporation as the goods of the former Carter corporation, would be illegal and subject to injunction; but that (unlike the use of a mere descriptive name or a name to which a secondary meaning had attached) a common surname could not in first instance be appropriated exclusively by either one of two or more persons entitled to the same surname. An examination of the photographs in the record in this case convinces me that no man of ordinary intelligence could mistake the place of business of the two Goldbergs at 1138 Broad Street, Augusta, Ga., with that of the two Goldbergs on the corner of the street at No. 1054 Broad Street. Except that the Goldbergs at 1138 carry as a part of their stock some ladies’ ready-to-wear, their stock of goods is entirely different from that of the Goldbergs of 1054 Broad Street, who are solely ladies’ outfitters—a term which implies that they cater only to ladies’ trade and are prepared to furnish an entire outfit for a lady from the shoes on her feet to the hat on her head. On the other hand, the sign over the Goldbergs at 1138 Broad Street reads, “Department Store,” the sign over the street carries the same legend, and their stock of goods is of every variety of merchandise for men as well as women, and for boys as well as for girls. This case, unlike the general case of unfair competition, does not relate to a single article made by either party where one of the parties may deceive the public by inducing the belief that he is selling the goods of another which are in fact better than those which he himself makes; for, according‘to the uncontradicted testimony, the goods sold by both sets of the Goldbergs are in general use and can be purchased by any merchant or others from numberless dealers.

In this case while for myself, following the rule so fully supported in the Garber case, I shall adhere to the doctrine that there can be no competition' as between two persons holding the same name, so as to allow either the exclusive use of the common name as against the other, still if the use of the name Goldberg for purpose of carrying on a dry-goods business in the city of Augusta must be awarded exclusively, I am constrained upon principle to differ from my colleagues as to the Goldbergs to whom this preference should be given. I agree that any man may change his name. I agree that this may be done even without pursuing the proceeding in the manner provided in our code of laws. But any man may justly feel an honorable pride in the name his father bore and which had been handed down in the generations from sire to son. This justifiable feeling makes the old family name a priceless birthright, the value of which increases as the years go by. Goldberg may not be a great name as names go. I have never investigated books of heraldry with reference to the family of Goldberg. But the Gold-bergs of 1138 Broad Street were born to a Goldberg; they were born Goldbergs. The name of Goldberg was theirs by inheritance. It is theirs whether the heritage is one of honor or of shame. Under the law they are entitled to the use of their own name. The Gold-bergs of .1054 Broad Street, according to their own admission, have taken the name of Goldberg as a matter of convenience. As T have said, this they have a right to do, but certainly they can have no family pride or business reputation honestly flowing to them from the Goldbergs of the past, because they must make the Gold-bergs of the future to carry on their initial work. It may be, as explained by one of the witnesses, that the change from Lifschitz to the name of Goldberg justified the abandonment by the plaintiffs of their ancestral patronymic, upon the ground that “the name of Lifschitz is a misfit in the English language,” but I can not, for this reason only, follow my brethren in conferring upon Jacob the birthright of Esau.