317 Mass. 446 | Mass. | 1945
This is a bill to restrain the defendants from using on their taxicabs a color scheme and design which the plaintiffs allege are similar to theirs. The master, to whom the case was referred, filed a report which was confirmed by an interlocutory decree from which no appeal was taken. The case comes here on the plaintiffs’ appeal from a final decree dismissing the bill.
The master’s findings may be summarized as follows: The fourteen plaintiffs are associated in the business of operating taxicabs in the city of Worcester under the name of Independent Taxi Operators Association (hereinafter called Independent). Although the membership has changed from time to time, Independent has been operating taxicabs in the city of Worcester continuously since 1926, the year it was formed. Independent’s taxicabs (twenty-five in number) were owned and operated by the individual plaintiffs.
The defendants, except Lukum and Tragis, were members of an association similar to Independent, known as the Public Service Taxicab Company (hereinafter called Public), and were also engaged in operating taxicabs in Worcester. Public was formed in May or June, 1943. The defendants Lukum and Tragis, who are not members of either association, also own and operate taxicabs in Worcester. The plaintiffs and all of the defendants are competitors in the taxicab business in Worcester.
Since its formation Independent has adopted and used the following color scheme and design for its vehicles: The top, upper portion of the body, hood and mudguards are black. The lower portion of the body and the wheels are of a “medium dark red or maroon” shade that is essentially the same on all the cabs. A stripe four and one half inches wide, consisting of two white lines with a black line in between, separates the upper and lower parts of the body. The letters “I T O A,” in gold, are printed on the rear doors. Most of the cabs carry a roof light over the top of the windshield with a shield and letters “I T O A” painted on the glass in front of the light. On the rear of the body of some of the cabs there is painted a shield containing the
Public since its formation had adopted a color scheme which, except for slight differences, is essentially the same as that of Independent. The stripe, however, which separates the upper and lower portions of the body is of one color — a very light bluish gray. Most of the cabs carry a roof light over the windshield with the word “Taxi” on it. Across both doors on both sides of the cab, and on the rear, are the words “Public Service Cab” and the telephone number. The lettering and figures on the Public cabs are white.
The defendant Lukum has been operating taxicabs in Worcester since 1921. On about March 1, 1942, he changed the color scheme of his cab (which had been yellow) to one, except for minor differences, similar to that of the plaintiffs. This was the first time he had ever used such a color scheme. The cab has a roof light above the windshield on the front glass of which is printed “Desoto Sky View Cab.” These words also appear on each of the rear doors; the same words with the exception of the word cab appear on the back of the cab. All of the lettering on the cab is silver.
The defendant Tragis has been in the taxicab business in Worcester since 1920. From 1931 down to the present time he has operated one or more cabs with a color scheme (except for a black and white checkered stripe) substantially the same as that of the plaintiffs. The words ‘ ‘ Checker Cab” appear on the shield.
At present the only cabs in Worcester that are painted red and black are those of the plaintiffs and the defendants. Certain locations of the streets are designated as taxicab stands. The plaintiffs obtain about seventy-five per cent of their business from the stands or “off the street” and about twenty-five per cent is obtained throúgh telephone calls. At the time of the hearing before the master the “dim out” regulations did not permit any lights on taxicabs to be lighted after dark other than “head” and “tail” lights unless such other lights were shielded.
At the hearing in the Superior Court the judge, after confirming the master’s report, found, as agreed by the parties, that the so called army “dim out” regulations referred to in the master’s report had been abrogated in the areas where the defendants’ taxicabs operate. He then reached the following conclusion: “With the 'dim out regulations’ abrogated I find that with the roof lights properly lighted and with the conspicuous lettering on the sides and rear of the defendants’ cars as same are now lettered it is highly improbable that any person seeking transportation by taxicab will be misled or deceived as to the ownership of any of the defendants’ taxicabs,” and ordered the bill dismissed as against all defendants.
On these conclusions the plaintiffs were entitled to relief. It is true that the master found that there was no danger of confusion with respect to the plaintiffs’ and the defendants’ cabs if they were observed from the side or rear in daylight or “in reasonable nighttime illumination,” and with the “dim out” abolished, we think it is permissible to assume that the “reasonable nighttime illumination” contemplated by the master thereafter obtained in Worcester. See Payne v. R. H. White Co. 314 Mass. 63. But the master also found that “especially in the nighttime
The plaintiffs’ bill seeks relief on grounds of unfair competition. The governing principles of law are now well
There remains for consideration the question whether the
The defendant Lukum did not plead laches originally but was allowed to set it up in his answer at the time of the hearing on the master’s report before the judge. The master found “that the period between March 1, 1942, when the defendant, Lukum, with the knowledge of the plaintiffs, caused his cab to be .painted black and red, and the date of the filing of this bill on July 23, 1943, is nearly one year and five months,” and left it to the judge to determine as matter of law whether this constituted laches. The judge ruled that it did. We think this was error. “Mere delay, provided it does not extend beyond the period of the statute of limitations, does not of itself amount to laches. . . . Laches is not mere delay but delay that works disadvantage to another.” Calkins v. Wire Hardware Co. 267 Mass. 52, 69. Westhampton Reservoir Recreation Corp. v. Hodder, 307 Mass. 288, 291. Ferrone v. Rossi, 311 Mass. 591, 596. There are no findings that the delay in bringing suit caused any disadvantage to the defendant Lukum.
The final decree is reversed except as to the defendant Tragis, and a new decree is to be entered enjoining the defendants other than Tragis from conducting their taxicab business in Worcester in a manner' likely to lead the public to believe that it is conducted by the plaintiffs, the details of the decree to be settled in the Superior Court. The bill is to be dismissed as against the defendant Tragis with costs to him against the plaintiffs. Costs are awarded to the plaintiffs as against all defendants except Tragis.
So ordered.
Italics ours.