240 Mass. 505 | Mass. | 1922
The dominant facts alleged, and to be taken as true for the purpose of the demurrer, are these: Prior to 1912 the plaintiffs were engaged in the manufacture and sale of fine candies, as copartners under the firm name of Page & Shaw. In the dissolution agreement of March 11, 1912, Page released to Shaw his interest in the property and good will of the business, and also “the right to use the name ‘Page’ accompanied by the name ‘Shaw’ as the trade name or trade-mark in the business of the manufacture or sale of candy.” In accordance with the terms of said agreement, Shaw, early in 1912, caused to be organized a corporation with the name Page & Shaw, Incorporated, to carry on the business of manufacturing and selling candy and confectionery at wholesale and retail; and he became the holder of the greater part of the capital stock of said company. To that corporation Shaw transferred the assets of the former partnership, with certain reservations.
In November, 1918, the defendant Otis E. Dunham acquired substantially all the capital stock of Page & Shaw, Incorporated, and became its president and general manager. Early in 1919, these two defendants, acting together, organized a new corporation with the name The Page & Shaw Chocolate Company, for carrying on the business of the manufacture and sale of chocolate and cocoa in various forms. On February 20,1920, the chocolate company, by its directors, undertook to purchase from Page & Shaw, Incorporated, the right to use “Page & Shaw” as part of the corporate name of the new company, together with the good will attaching thereto, giving shares of the capital stock of the chocolate company as consideration therefor. The plaintiffs seek by this bill in equity, among other things, to enjoin the new corporation from using in its business or as a trade name or trademark the names of either of them or the name Page & Shaw.
It is provided by G. L. c. 110, § 4: “A person who conducts business in the Commonwealth shall not assume or continue to
The plaintiffs have a joint and concurrent interest in preventing the use of the names Page and Shaw by the defendant chocolate company. Their consent in writing is required in order to justify that use. Morse v. Hall, 109 Mass 409. Lodge v. Weld, supra. See Cadigan v. Brown, 120 Mass. 493, 494. We cannot say that the defendant Dunham is improperly joined, in view of the allegations of the bill. The objection of multifariousness is not tenable. Lovejoy v. Bailey, 214 Mass. 134, 151. It is not necessary at this stage of the case to consider whether the plaintiffs are entitled to damages or profits. See Lawrence v. Hull, 169 Mass. 250; Kaufman v. Kaufman, 223 Mass. 104. The plaintiffs state a ease entitling them to an injunction, under the statute. G. L. c. 110, § 7. Bowman v. Floyd, 3 Allen, 76. C. H. Batchelder & Co. Inc. v. Batchelder, supra. That requires the overruling of the demurrer. In accordance with the report, the defendants are to answer to the bill as amended.
Ordered accordingly.
