95 So. 12 | Ala. | 1923
Complainant, Harris Transfer Warehouse Company, commonly, it appears, referred to as "Harris Transfer Company," filed this bill against the Harrison Transfer Company, seeking to enjoin the use of the name "Harrison Transfer Company" or "Harrison Transfer Warehouse Company" in the conduct of defendant's business. The proof, in substantial accord with the averments of the bill, shows that, of these two incorporated companies, both engaged in the transfer and warehouse business, complainant is the older company, and formerly did business in the place now occupied by defendant. At one time the Rounds Transfer Company engaged in the same business in the city of Birmingham; E. W. Rounds owning 28 of the 30 shares of its capital stock. The Rounds Company was not successful, and after 28 of its shares had come into the control of one Erdreich (of which his wife owned 1) and J. A. Harrison had acquired 1 — the remaining share being retained by E. W. Rounds — the name of the company was changed to Harrison Transfer Company. Over its place of business and upon at least one of its trucks appeared the name Harrison Transfer Warehouse Company. There was evidence tending to show that defendant company, of which Erdreich is now president and manager, made conscious effort to draw business away from complainant by representing itself to inquirers by telephone as being the complainant company; this, however, is emphatically denied by defendant. Mistakes in that method of communication may have easily confused the names of the two companies, or defendant's telephone may have been intentionally used by defendant in such manner as to induce customers to believe they were dealing with complainant. One witness testifies, in effect, that upon one occasion, when she went again to defendant's place of business, asking particularly for complainant, who before that had done some hauling for her, she was informed that defendant was the company she was looking for. It may be conceded that, if complainant's case rested exclusively upon the evidence as to specific dealings with customers, such evidence, though creating grave suspicion as to the ethics of defendant's *632 manner of business, would scarcely suffice to authorize the relief prayed.
It seems evident, however, that defendant proceeded upon the theory that, since one of its stockholders was named Harrison, it had as much right to use that name as complainant had to use the name "Harris," and that, since "transfer" is a generic term (Empire Guano Co. v. Jefferson Fertilizer Co.,
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.