Junior Food Stores of West Florida, Inc. v. Jr. Food Stores, Inc., No. J-302

No. J-302 | Fla. Dist. Ct. App. | Oct 1, 1968

JOHNSON, Judge.

This is an appeal from a final judgment finding the appellee, plaintiff below, to be the owner of the trademark “Jr. Food Store,” along with the design of said words and the picture of a boy, as filed in the office of Secretary of State of Florida, and enjoining the appellant, defendant below, from using or displaying the words “Jr. Food Store,” on any of its stores or in its advertising. The appeal is also from the order denying a rehearing in said cause.

It appears that the appellee was incorporated in 1961 and shortly thereafter registered with the Secretary of State the trade name of “Jr. Food Store.” It had several stores in West Florida, mostly in Bay County as a starter. This was a retail grocery business, and carried as its advertisement on its stores “Jr. Food Store” and the picture of a boy.

In the latter part of 1964, appellant incorporated as a grocery operation, and filed application to use the trademark “Jr. Food Stores” including the picture of a boy.

In 1965, appellant started using the advertising emblem of “Jr. Food Stores” and the picture of the boy, on its stores which were located in counties close by counties in which the appellee was already operating stores. At the time of filing this suit, only one county had both parties with stores therein.

It is admitted that there was confusion in some of the invoices and deliveries of merchandise.

The chancellor, after taking testimony, found that the appellee was the lawful owner of the first trade name “Jr. Food Store” and had been using the same several years prior to the advent of the appellant and that by both parties being in the same type business, that the use of the same or practically the same trade name and identification by a picture of a boy, resulted in confusion among people doing business with the parties and caused mistakes and tended to deceive as to the true lawful ownership of operation of plaintiff’s (appellee’s) and defendant’s (appellant’s) stores.

Based upon such findings of fact the chancellor entered his final judgment appealed from.

We have carefully read the record and the briefs and heard oral argument, but we fail to find where the appellant has demonstrated reversible error on the part of the chancellor. We will not substitute our judgment for his where there is sufficient evidence to support his findings and there has been no erroneous application of the law, as we find to be so here.

The orders appealed from are hereby affirmed.

RAWLS, Acting C. J., and SPECTOR, J., concur.