89 N.J. Eq. 472 | New York Court of Chancery | 1919
The application is for an order adjudging respondent in contempt for acts alleged to constitute a violation of an injunction of this court and to punish him therefor.
On July 18th, 1918, respondent was enjoined by a decree of this court entered on remittitur from the court of errors and appeals “from using the name ‘Hilton’s’ or ‘Hilton,’ alone or in conjunction with other words, in such manner as to lead or induce the public to believe that the goods manufactured or sold by him are manufactured or sold by complainant, and that the business conducted by defendant is the same as or a part of the business conducted by complainant, from using any emblem or device resembling the trade emblem of complainant in any way in his business and from conducting his business so as to deceive the public and induce it to believe that the goods manufactured or sold by defendant were manufactured or sold by complainant, and that the business conducted by defendant is the same as or a part of the business conducted by complainant.”
The question is one solely of fact. The legal and equitable rights of the parties have been settled by the final decree. ,
An extended argument was made in an attempt to show that the opinion of the court of errors and appeals indicated that the law was otherwise than as considered by this court on the determination of the main cause. An examination of the opinion of'this court in the maih cause and of the opinion of the court of errors and appeals wall indicate that the view’ of this court as to the law was not othenvise than as indicated by the court of errors and appeals. This court never assumed that it might with propriety enjoin the use by a man of his name except wdiere he was using it in his business in such a manner as to deceive the public, palm off his goods as the goods of another or lead the public to believe that his business was that of or a part of that of another. As I indicated in Hilton v. Hilton, in previous contempt proceedings (89 N. J. Eq. 417), I conceive that the difference between the court of errors and appeals and this court was
The final decree has the effect of an adjudication that the manner in which the business was being conducted at the time it was made was within the ban of the injunction. After the final decree was entered and served, defendant changed his signs by adding the words “J. Hilton, Prop.” Upon application to punish him for contempt, I found that the additional words “J. Hilton, Prop.,” did not save the situation, for the reasons which I then indicated. 89 N. J. Eq. 417. After the adjudication of contempt, defendant again changed his signs and now uses the term “Jos. Hilton & Co.” to designate his business. He had altered his signs so that they are as dissimilar as they can be from the signs of complainant, and yet have thereon the words I have indicated, and not have thereon words drawing attention to the fact that they are not the stores of the established Hilton Company. The store dressings, &o., are precisely the same as they were at the time the main cause was determined, so that to outward appearances the stores of the Hilton Company and Joseph Hilton look the same, as in the nature of things they must. The labels of defendant have been changed so that they are dissimilar from labels of complainant, and the remarks which I have made with resj>ect to the signs apply to them. There is in this case the same kin$ of evidence as there was in the main case as to confusion. Customers have come into the Hilton Company stores believing they were in the stores of Joseph Hilton. Mail has been received by the Hilton Company intended for Joseph Hilton. Mistakes have been made by individuals desiring to
The case is somewhat analogous to those dealing with the right of a corporation to assume a corporate' name. Under the Corporation act (2 Comp. Stat. p. 1603 § 8) a corporation is forbidden to assume a name in use by another existing corporation or so nearly similar thereto as to lead to uncertainty and confusion. Under this statute, American Glucose Sugar Refining Company has been held to be too nearly similar to Glucose Sugar Refining Company (56 Atl. Rep. 861); L. Martin & Wilckes Company too nearly similar to the L. Martin Company (75 N. J. Eq. 39); affirmed on this branch of the case (75 N. J. Eq. 257); the Edison Automobile Company of Washington too nearly similar to the Edison Storage Battery Company (67 N. J. Eq. 44); Eureka Rubber Manufacturing Company too nearly similar to Eureka Eire Hose Company (69 N. J. Eq. 159); affirmed, 71 N. J. Eq. 300.
Defendant in his advertisements has indicated that his only stores are at the addresses mentioned in the advertisements, as also has complainant, but I do not think this saves the situation. In the first place, I do not believe it prevents confusion. I think little attention is paid by readers of advertisements to statements of this kind, and that notwithstanding their presence, customers are likely to go to the stores of defendant believing them to be those of complainant, and vice versa; and, moreover, as I said in the previous contempt proceeding (89 N. J. Eq. 417), I think complainant is entitled to have the public know not only that Jos. Hilton & Co. is not the Hilton Compaq, but also that it is not the business known as the Hilton Company prior to defendant’s entering the field. What I said (89 N. J.
I will advise an order adjudging respondent in contempt. Counsel may prepare a form of order. I think, perhaps, the order should provide for a certain length of time within which the defendant may be permitted to discontinue the existing practice, and if he does not discontinue within the time stated, then that a warrant issue upon application, upon notice, directing his commitment to the common jail of the county of Essex until he shall have discontinued the practice. Care should be taken in framing the order that it be conclusive, so that an appeal may be taken as counsel stated in open court at the conclusion of the hearing and the delivery of the oral conclusions that an appeal was intended. Let the order be settled on one day’s notice.