89 Kan. 855 | Kan. | 1913
The opinion of the court was delivered by
The Kansas Milling Company, a Kansas corporation organized in 1906, has since that time been engaged at Wichita in the manufacture and sale of flour, its business extending throughout the Union and to foreign countries. About January 1, 1912, another Kansas corporation was formed under the name “The Kansas Flour Mills Company,” which owns and operates flour mills in seven different cities, one of them at Kansas City, Kan., the others in the southwestern part of the state, none of them being in Wichita, where its general offices are established. The first-named company brought action against the other, asking that it be restrained from conducting its business under the name adopted, upon the ground that by so doing it had engaged in unfair competition. A temporary injunction was granted, and the defendant appeals.
The court made findings of fact, the more important of which may be thus summarized: The plaintiff has at great expense built up a large trade in this and foreign countriés, selling about 300,000 barrels of flour annually, and has established a reputation for the excellence of its product. It has branded and advertised its flour as manufactured by The Kansas Milling Company, of Wichita, Kansas, and thereby has made its name a valuable asset. Mail matter and telegrams intended for the plaintiff have continually been delivered to the defendant, and vice versa. There has also been confusion in telephone calls. The similarity of name under the circumstances is likely to give the defendant the benefit of the plaintiff’s advertising and Drestige, and to mislead buyers into the belief that the
It is obvious that the use of names so similar, by two companies engaged in the same business, in the same city, may produce some confusion and result in some disadvantages. Whether the interference of a court is justified is a question of considerable difficulty. The ruling of the trial -court is not based upon the theory that the plaintiff has acquired or can acquire an exclusive right to the use of the word “Kansas” as a part of the name of a corporation engaged in the manufacture of flour. The order granted runs only against the use of the particular title employed, in connection with a business conducted at Wichita. The defendant’s right to establish its general offices in a place of its own choosing is as clear as its right to employ .the -word “Kansas.” The statute requires the name of a corporation to begin with the word “the” and to end with the word “corporation,” “company,” “association,” or “society,” and to indicate the character of its business. (Gen. Stat. 1909, § 1701.) “Company” is the word usually employed. “Corporation” and “association” are so similar that the employment of either might not mend matters greatly. The phrase “'flour mills” doubtless differs as much from “milling” as any term that could be selected to indicate the character of the business. Probably the least radical change that would satisfy the injunction would be the insertion of another word after “Kansas,” such, for illustration, as “United” or “Consolidated.” The amount of inconvenience that might result therefrom can not well be determined, but it can not be said that reasonable grounds of objection to such a change may not exist.
The cases bearing upon the right of one who has made use of a descriptive geographical name in his business to be protected therein upon the ground of unfair competition are fully collected in notes in
There seems to be a conflict of authority as to whether, in order that the use of a geographical name may be enjoined on the ground of unfair competition, an actual intention to defraud must be shown. (Noté, 26 L. R. A., n. s., 77; Nims on Unfair Business Competition, §§ 25, 26.) Perhaps the decisions can be reconciled by a careful consideration' of the precise facts of each case, but we do not deem it necessary to review them in detail. Doubtless in many particular instances an injunction might well be awarded or refused according to whether an intentional wrong has been done. But we do not think it should be said broadly that proof of intentional fraud is essential to the granting of such relief. While the existence of a wrongful intent might justify the interference of a court of equity upon a less showing of injury than would otherwisé be required, the absence of such spe
The trial court concluded that “the corporate name of defendant is so similar to that of plaintiff as to be likely to deceive a person of ordinary intelligence in the exercise of usual care in dealing with the defendant.” The degree to which the similarity of names will naturally tend to deceive a reasonably intelligent and careful person is undoubtedly the vital question on which the controversy turns. That question, however, is essentially one of law rather than of fact. It can not be conclusively determined by evidence of whether confusion has or has not resulted, just as the actual conduct of individuals is not proof of what constitutes reasonable diligence. Under the subtitle “What is similarity of corporate names,” it is said in Nims on Unfair Business Competition:
“What names are ‘calculated to deceive’ and what names are so ‘different,’ or ‘dissimilar,’ or ‘conflicting,’ as not to tend to cause confusion or deceit? What standard can be applied to measure names, to discover whether or not they are conflicting? The House of Lords has said that no witness is entitled to express an opinion as to this. The names may be put in evidence, together with the facts as to their use, and the-circumstances surrounding the choosing of them; but there is no standard, except what the court in each particular case believes has worked fraud, or may work fraud or loss to the plaintiff. The probability of injury resulting from the use of the two names is the test to be applied by the court for the purpose of deciding whether or not the name will conflict. (§ 108.)
The decision of the case must be affected by the character of the names as well as by their degree of
If the defendant had imitated the plaintiff’s brands, or taken other steps likely to increase the confusion between the two names, relief could be granted. A finding was made to the effect that the defendant intends branding and advertising the product of its various mills as “manufactured by the Kansas Flour Mills Company, Wichita, Kansas.” The defendant maintains that this finding is not supported by the evidence. The plaintiff says in its brief: “It is our contention that the labeling of all of the flour of defendant in the name of Kansas Flour Mills Company,. Wichita, Kansas, or the Kansas Flour Mills Company, General Offices, Wichita, Kansas, and not placing any
A detailed review of the authorities is not thought to be desirable. Each case necessarily depends upon its own peculiar facts, and in several instances decisions seemingly in point are influenced by considerations not here present. In Elgin Butter Co. v. Creamery Co., 155 Ill. 127, 40, N. E. 616, the court refused to enjoin a corporation called “Elgin Creamery Company” from competing at Elgin with a company having an established business under the name “The Elgin Butter Co.” The facts are somewhat similar to those of the present case, but the opinion contains an intimation that the use of a corporate name similar to one already in use can only be enjoined where a fraudulent intent exists, a length to which we do not feel justified in going. In Nebraska Loan & Trust Co. v. Nine et al., 27 Neb. 507, 48 N. W. 348, 20 Am. St. Rep. 686, injunction against the use by a new company of a name already employed by an older one was refused, the companies being located in different cities but operating in the same territory. Northwestern Knitting Co. v. Garon, 112 Minn. 321, 128 N. W. 288, is perhaps as strong a case as any cited in support of "the plaintiff’s contention. There the operation of the “Northwestern Knitting Mill,” located at Duluth, was enjoined because of interference with the business of the “Northwestern Knitting Company,” of Minneapolis.
The judgment is reversed with directions to deny the temporary injunction.