Phipps Bros. Inc. v. Nelson's Oil & Gas, Inc.

INC., PHIPPS BROS. d/b/a Restaurant, Family Appellant,

Plaintiff and GAS, INC., AND OIL

NELSON’S d/b/a Korner, Defendant Nelson’s Appellee.

No. 18008. Dakota.

Supreme Court of South 16, 1993.

Argued March 24, 1993.

Decided Nov.

Rehearing Denied Jan. Mines, and Jeremi-

Robert G. Services, Legal Dakota Plains ah J. Davis of Pierre, plaintiff appellant. Porter, Gene R. Bushnell Donald A. Hill, Costello, Porter, Heisterkamp and Bushnell, ap- City, for defendant Rapid pellee.

WUEST, Justice. de- from a circuit court’s appeals

Plaintiff in- there was no trademark termination that Kountry Korner fringement Nelson’s Restaurant. against We reverse.

886 liquor. Although urges

FACTS also sell Nelson food only service the stores consists (hereinafter Arnold and Patricia food,” “fast the reveals that the record estab- Country Phipps) began operating the Corner promoted regularly as lishments restau- Family Springs, Restaurant South breakfasts, chicken, serving pizza, rants ribs using Dakota in 1984. Prior to “ Specials.” Daily other ‘Homemade’ name, Phipps permis- Corner obtained Advertisements inform readers that food can businessperson sion ran of a Texas who sev- they may out or carried be “Seated in by eral name. restaurants same The Air Conditioned Comfort.” Family Restaurant is well- Springs known in the Hot and southern against filed suit for Nelson trade- good Black Hills areas and has established infringement mark requesting monetary reputation positive among will resi- damages injunction prohibit an Nelson enjoys dents in the area and substantial busi- continuing from to use the name ness from the tourist trade. Korner. The trial court found Nelson. Phipps appeals raising three which issues (hereinaf- Oil Defendant Nelson’s and Gas noting address while additional facts where Nelson) operated gas ter three station/conve- necessary. stores, including service, nience restaurant under the name “Food n Fuel.” These Dakota, Edgemont, stores were South as ANALYSIS nearby well as the towns of Lusk and Sun- It been has stated that in a trademark dance, Wyoming. was Nelson con- case, infringement “A ‘trademark’ is not that by corporation tacted a Minnesota with busi- infringed. infringed which is isWhat is the using nesses the same name and advised public right of the to be free of confusion and using Nelson to cease the name n “Food synonymous right of a trademark owner possible infringe- Fuel” due to a trademark product’s reputation.” his control James employee ment. Nelson held contest to Inc., Burrough Ltd. v. Sign Beefeater, name, select a new chose (7th Cir.1976). 274 South Da “Kountry Korner.” Nelson was familiar with adopted kota virtually has what is the univer Corner establishment in Hot governing sal infringe standard trademark questioned regarding ment —whether there is a of confu likelihood similarity prior of the two names institu- Out, among sion consumers. Time promotion change. tion and of the name Ne- Karras, (S.D.1986); see

vertheless, proceeded plans Nelson with 1114;2 § also 15 U.S.C. Sun Banks Fla. v. adopt the name “Nelson’s Korner” Loan, Sun Fed. Sav. & 651 F.2d for his businesses.1 (5th Cir.1981); Co., SquirtCo. Seven-Up Cir.1980). (8th Restaurant is 628 F.2d “It is family-oriented pa- generally inquiry establishment where said that the relevant is trons ‘ordinarily prudent are seated at tables and served purchaser’ whether an likely waiters and waitresses. The Nelson would be to be misled or confused as to gasoline, petroleum prod- Korner stores sell goods ques source services ucts, greeting toiletries and cards and rent tion.” European Health Indus. v. (D.S.D. (1980)) video Spas, cassettes. The South Dakota stores Act, pending, In the fall of while the suit was the "likelihood Lanham of confusion” "Kountry Nelson constructed an additional Kor- appears universally test to have been Custer, ner” at South Dakota. actions, infringement trademark even where brought under state has law. This court stated infringement frequently 2. Trademark cases are purpose recognizing right that "The to the brought under the Lanham Act. Pertinent lan- use of a mark is to avoid a likelihood confu- guage person of this federal law states that a who among sion the consumers.” Time "colorably registered imitate[s] mark” such Sunline, Inc., N.W.2d at SweeTarts "likely that the use to cause ... shall (8th Cir.1967) (stating 380 F.2d be § liable a civil action.” 15 U.S.C. 1114(l)(b). 1125(a)(1)(A). universally applied "the test See whether there is a also U.S.C. present brought consumers.”)). among While the case was not under likelihood Heublein, See, Corp. e.g., David Sherman question mixed law and fact. (8th Cir.1965)). Group, “Actual Homeowners Inc. v. Home Market 340 F.2d 377 confusion, ing Specialists, required, strong 1100, 1107 (6th is also while not 931 F.2d Cir.1991) (“Factual of the likelihood of confusion.” evidence findings must be made Indus., (citations F.Supp. at 489 866 respect with to the likelihood of confusion omitted). factors_ However, the further determi given nation of whether a set of foundational the stan This court has addressed facts establishes a likelihood of confusion is a that, review, stating of “Whether there dard conclusion.”) (citing Wynn Oil Co. v. legal among may likelihood confusion con be a of Thomas, (6th 1183, Cir.1988)); 839 F.2d 1186 question” a factual to be resolved sumers is Indus., Alpha Alpha see also Inc. v. Steel by considering factors related to various the (9th Shapes, Tube 440, & F.2d 616 443-44 case at hand. Time 392 N.W.2d 438. Sears, Cir.1980); Roebuck & Co. v. weight authority of is that likelihood of Johnson, (3rd 590, Cir.1955). 219 591 F.2d However, question confusion is a of fact.3 split among a There is federal circuits as hold of confusion some courts that likelihood to the correct standard of review for the See, Spheeris e.g., question a of law. question likelihood of purposes Sporting Spheeris Capitol, v. on Goods 157 Act; however, of Lanham 581, U.S. Su 298, (Wis.App. 586 Wis.2d preme question. 1990) (“Whether Court refused to address the confusingly names are trade Restaurants, Elby’s Big Boy Frisch’s Inc. v. law.”) a presents question of similar Stuebenville, Inc., (6th Rush, 670 F.2d 642 Resort Cir. Gaston’s White River v. 701 denied, 1982), 916, cert. 1431, (W.D.Ark.1988)); 103 Sweats F.Supp. 459 U.S. 1436 S.Ct. Co., (1982) Fashions, 231, (White, J., Knitting Inc. v. 74 L.Ed.2d Pannill 182 dis 833 (Fed.Cir.1987) (“The 1560, senting; stating that “Because there is a F.2d 1565 uniform split question issue in the lower on this ... precedent of this court is that courts (cita grant of confusion is one of law.” would certiorari resolve the con likelihood (citations omitted)). Volkswagenwerk Ag omitted)); v. sug flict.” It has been tions (D.S.C.1980) (cit Hoffman, gested Supreme F.Supp. 489 678 that were the Court to ad Co., 458, v. question, Baker Simmons ing 307 F.2d 461 dress the Court most (1st Cir.1962).4 likely categorize a A number of other likelihood of confusion as courts question.5 law and fact have found likelihood of confusion be a mixed factors, subsidiary analysis of 74 AmJur.2d a number of 3. See Trademarks and Tradenames mark, (1974); Corp. including strength plaintiff's 119 General Seventh- of the Conf. Day Seventh-Day Congre marks, v. similarity similarity Adventists Adventist of the Church, (9th 228, gational F.2d 231 Cir. 887 plaintiff's goods prox- and the and defendant's 1989); Brewing channels, G. Heileman Co. v. Anheuser- marketing imity evidence of Busch, Inc., 985, (7th Cir.1989); 999 873 F.2d confusion, intent in select- actual defendant's Stores, Co., Safeway Safeway Inc. v. Ins. 657 mark, goods degree ing type and the 1307, (M.D.La.1985), aff'd, F.Supp. 791 1313 by purchasers.” [Citation of care exercised (5th 1986) (citing F.2d Cir. Falcon Rice Mill 929 (or Where these factors "founda- omitted.] Mill, (5th Community v. Rice 725 F.2d 344 known) be otherwise can tional facts” as Jellibeans, 1982)); Skating v. Clubs Cir. Georgia, Inc. present- uncontested evidence discerned from Cir.1983); (11th 716 F.2d 839 exhibits, the through court affidavits ed Marcon, Rubenstein, Inc., Ltd. v. 694 F.2d Helena a of confusion as can determine likelihood Int'l, (4th 1982); Hi-Bred Cir. Pioneer law need for trial. matter of without (8th Hybrids, Inc. v. 733 F.2d Wilson Kalvin, Lab., F.Supp. Sykes (S.D.Iowa 1982) 1984) aff'g, Cir. (D.C.Cal.1985) (citing J.B. Co. v. Le Williams Laboratories, Svstems, Vitek Inc. Abbott (9th Cosmetics, Inc., 523 F.2d Conte 190’(8th 1982); SquirtCo v. 675 F.2d Cir. Seven- 1975)). Cir. Co., (8th Cir.1980)); Up 628 F.2d Foods, Inc., Discount Plus Products Plus Comment, Reynolds, Appel- 5.See Brett Thomas (2d Cir.1983)). Is Likeli- Act Violations: late Review Lanham or Fact? 38 Question Law hood a that likelihood of confu- Another of Confusion analogizes This writer question made note of "founda- SwL.J. sion was a of law question tional be considered: likelihood of facts" must materiality misrep- Court’s characterization of likelihood of this circuit determination as questions decisions in securities premised resentation "a on confusion is conclusion by analysis BY THE persuaded like that of CONSUMER THE USE OF stating Alpha, that “[i]n the Ninth Circuit COUNTRY CORNER FAMI- NAMES assessing there likelihood of con- whether LY AND RESTAURANT NELSON’S fusion, fac- a court first considers numerous KOUNTRY KORNER? thereon, then, tors and based determines Proof likelihood of confusion in whether there exists likelihood confu- infringement eases trademark does re Similarly, Alpha, sion.” 616 F.2d at confusion; however, quire pos actual a mere the Third stated in Sears that “the Circuit sibility enough. is not There be must facts, dispute here is not as to the basic but public “substantial likelihood that will be fact) (i.e., as to what inference ultimate Lab., Sys., confused.” Vitek Inc. Abbott reasonably should from the basic derived (8th Cir.1982) 190, (quoting F.2d 192 675 Sears, analy- facts.” 219 F.2d at 591. These 1091; Stoves, SquirtCo., F.2d at 628 Fisher question of are ses of likelihood Works, Nighter v. Inc. All Stove 626 analysis ques- with our own of such accord (1st Cir.1980)). 193, party F.2d 194 The Department tions. See La- Permann claiming injury proving bears the burden of (S.D.1987). bor, 113, In 411 N.W.2d 118 “ Banks, 315; infringement. Sun 651 at F.2d Permann, questions we stated that ‘mixed Armstrong, see re Estate 400 N.W.2d questions and fact law [are] which (S.D.1987); Pearson, 267 Pearson 312 established, facts are or historical admitted (S.D.1981). N.W.2d 34 undisputed, the rule law is and the is issue satisfy statutory whether facts stan- The test of whether there is a substantial dard, put way, toor it another whether the among likelihood of confusion consumers re applied rule of law as to the established facts quires the to consider numerous factors not (quoting is or is violated.’” Pull- Id. whether, to all determine under the circum Swint, 273, man-Standard v. U.S. n. 456 289 stances, there is a likelihood of confusion. 19, 19, 66, 102 S.Ct. 1790 n. 72 L.Ed.2d SquirtCo., F.2d (citing 628 at 1090-91 Grotri (1982)). 80 n. 19 (2nd Sons, Steinway an v. & 1331 Thus, Cir.1975)). question hold that the of likeli- One commentator has noted: question hood of confusion is a fact mixed involving In cases a restaurant’s or and law. To the extent this that mark, courts have identified several crite- opinion inconsistent with Time that determining ria to be considered wheth- modified. exists, such including er a likelihood strength allegedly infringed mark, “Since this issue is a ques mixed law-fact marks, requires apply legal similarity parties’ tion and us to a stan dard, question similarity parties’ products we will treat it as a of law and of the or ser- Permann, vices, freely similarity review the issue.” of their clientele or efforts, N.W.2d 119. See marketing In re Hendrickson’s the defendant’s intent in Serv., (S.D. mark, Care adopting N.W.2d its name or evidence of 1990) (stating questions that mixed law-fact parties’ actual confusion between the busi- requiring application legal nesses, of a presence parties standard of the novo) questions reviewed as are of law — de market, geographic same the likelihood of Int’l, In re Groseth lines, expansion parties’ product of the and (S.D.1989) (Sabers, J., concurring in part degree likely of care consumers are to concurring specially and in part); South Da par- exercise in distinguishing between the Stockgrowers kota Ass’n Holloway, appears ties’ businesses It []. (S.D.1989)). N.W.2d exhaustive, every list is not factor I. DID PHIPPS A appearing PROVE LIKELI- invariably therein will rele- case, OF

HOOD TO THE to every single CONFUSION vant and that no questions Pact, Law, mixed fact. Id. Question TSC A Question Tí or Both? Ky.L.J. Indus., (1984-85) Northway, 426 U.S. (discussing likeli- 2126, 2132, (1976)). 96 S.Ct. 48 L.Ed.2d 757 question hood of fact). as a mixed of law and Thomas, Comment, Janet Shiffler See also Likeli- hood Under the Lanham AAct: of Confusion invariably carpet 4. A group or of factors is ordered Nelson’s factor Country shipped to overriding Corner Corner significance. Springs. Annotation, Thomas, A. Restaurant Tim regular A patron Cor- Infringement Trade- or Mark as Name patronizing ner ceased the restaurant 32(1) 4.3(a) § Lanham mark Under he saw promotion when for the Nelson (15 1114(1), 1125(a)), §§ Act USCS patron Korner. This assumed § 2 A.L.R.FED. purchased Corner had been Nelson, by Jack an individual whose busi- Phipps had court found that trial patronizing. nesses he avoided using the name been supplier A asked fill out a acquired had Restaurant since application, credit under the new mistaken trademark under SDCL valid common-law that the belief Corner had been 37-6-27, names further found the trade sold. appearance, pronunciation similar in were 7. A driver for Food Services of America per suggestion. The trial court then mistakenly up the dock drove at Coun- test, balancing be a appears formed what delivery try make that was weighing the similarities the dissimilari intended for the Korner. Country between Corner and Koun- ties try Korner establishments. Con business only is required “Plaintiff to show that ceding present of that did evidence confusion,’ there of ‘likelihood as between confusion, the trial held that customer court Properties, parties.” Country Inc. was evidence to show like Kitchen, there “insufficient Country U.S.P.Q. Bill’s because, largely (M.D.Fla.1979) in the of lihood confusion” 1979 WL 25065 World view, court’s the similarities of the busi trial Carpets, Inc. Dick Littrell’s New World (5th Cir.1971).6 outweighed were the differences. nesses Carpets, 438 F.2d application an the likeli This was incorrect Properties, Country the court facts In found Further, review of hood of confusion test. showing respective actual as to the confusion findings customers, record the trial court’s indicates part prospective parties on the by the supported are not evidence. delivery employees, suppliers and services. strong evidence actual con record reveals The court stated: fusion: positive or There can be more substan- no proof of the likelihood tial Testimony 1. indicated that Nelson when Moreover, proof of actual confusion. than name, many Kountry Korner very proof tells us little reason that while people impression that were under necessary would be to actual confusion bought Phipps’ Nelson out restau- had confusion, an al- prove the likelihood of Questions were rant. asked of proof overwhelming amount most as employees management, necessary proof. such to refute neighboring as a

well businessman. 489) Carpets, 438 World F.2d Id. area 2. There some at an was added). produced ample (emphasis regarding radio station whether of actual confusion to meet the bur- evidence previously Korner Corner or had note that the trial proof. We also den participated special promotion. in a importance placed to on appears have in- locations were began the fact the business Corner customers correctly twenty apart. find no designating the their than miles payee on more arbitrary authority radius designating personal cheeks as Korner. Oth- excuse trademark any distance that would er customers asked whether should Therefore, “K”, we hold spell infringement. the name with “C” or a indicat- proof for likeli- Phipps met burden ing that there was another (or Korner) Edgemont. in hood against the defendant who summary judgment restaurants Country Properties, on Kitchen In Country Kitchen.” granted Country adopted the "Bill’s infringement had the issue to confusion, evidentiary court on rulings. and reverse the trial discretion on its See Hanson, (S.D.

this issue. State v. 456 N.W.2d Olesen, (S.D. 1990); State v. N.W.2d II. AN WAS PHIPPS ENTITLED TO 1989); Bawdon, N.W.2d State NEL- INJUNCTION PROHIBITING (S.D.1986). However, present matter, NAME SON FROM USING THE if consequential damages issue issue is KOUNTRY KORNER? re-tried, the court is free reconsider its relief, injunctive order to obtain “[I]n ruling subpoena. on See SDCL 37-6-24 registrants trademark must meet the same (allowing damages injunction in addition legal infringement applied standard of that is action). infringement Further, trademark in common trademark infringement.” parties note briefs ad Cashways, John Co. v. Payless Deere and our punitive dressed statutes on damages. (8th Cir.1982); 681 F.2d opinion, application our no has 109-1091; SquirtCo., Armstrong 628 F.2d at consequential damages incidental to the is Carpets, Cork Co. v. World injunction. of an suance (5th Cir.1979). 496, 499 “A in permanent junction only way prevent is the the likeli MILLER, C.J., SABERS, J., concur. public hood that the will be misled.” Indus., at 869. We also note HENDERSON, J., part concurs in case, that in infringement a trademark “Ac part. dissents damages tual not be need shown order to AMUNDSON, J., dissents. Clothes, injunctive obtain relief.” Howards Inc. Corp., v. Howard Clothes 236 Minn. HENDERSON, (concurring Justice n. 8 Because we part; dissenting part). reverse on the issue of confu likelihood of two-day April, 1992, a After trial in the sion, we instruct circuit the court to enter factually (Finding trial court found of Fact injunction opinion. consistent with this #35) “reasonably prudent that customers III. DID TRIAL THE ERR IN COURT confuse Plaintiffs business with QUASHING THE SUBPOENA DUC- Defendant’s.” ES TECUM WHICH SOUGHT PRO- exists, however, DUCTION There a “likelihood of con- OF FINAN- NELSON’S PROFITS, fusion” the Family CIAL between Corner RECORDS AND TO in BE Restaurant USED FOR Nelson’s CALCULATION OF CONSEQUENTIAL Edge- Korner establishments in DAMAGES? mont, nearby and two Wyoming Custer com- trial, Phipps Prior brought a sub munities. poena pre duces requesting tecum Nelson’s years’ vious four income tax my opinion, returns. Our In the circuit court entered court, motion, statute upon fact, allows the finding plus thirty-four above “quash modify subpoena more, or contrary if unrea it is to the “likelihood of confu oppressive.” and, thus, sonable and clearly SDCL 15-6- sion” rule was erroneous. 45(b)(1). moved, Law, upon Nelson so a tele via Conclusions of based these erro phonic hearing, granted findings, motion neous became mistakes of law. quash. granting Labor, D., Dept. order the motion Unemp. Permann Ins. o (S.D.1987). rationale, fails to state the court’s and n 411 N.W.2d 113 There is no transcript telephonic of the hearing includ support is doubt that there is some evidence to record; therefore, ed in the Gas, position appellee, we cannot review the Nelson’s Oil & ruling. the basis of the We that have held Nelson’s Korner. But d/b/a party seeking modify test, quash or such a that is not the test. The taken from subpoena Co., proving has the burden of ne Gypsum United States U.S. 333 U.S. cessity doing Dep’t 364, 395, so. State ex rel. 68 S.Ct. 92 L.Ed. 746 Grudnik, Transp. v. (1948), 90 S.D. which this Court In re generally recognize Hobelsberger, that Estate S.D. (1970), the trial court should be allowed simply: Findings considerable N.W.2d 455 is (“the clearly reviewing weight if the of authority” opinion States Fact are erroneous evidence, it); court, now, upon approximately left based the entire dubs and one-half six firm years later, the definite and conviction that precedent. with we cast aside our has been We held in Time mistake made. When Bar and does the Bench of this state Karras, Out, N.W.2d legal premise set its feet aon we have here- (S.D.1986) phrase “likelihood con tofore enunciated? question. is a Such fusion” factual also, only Not in Time but in SDCL precedent in this precise, recent Court. 15-6-52(a), we read Bros., Inc., Corner d/b/a Findings shall not be set aside of fact Restaurant, Family first was the time and erroneous, clearly regard unless and due competing right. It was the first business given opportunity shall to the of the thus, and, enjoys the name common to use judge trial credibility court to of the of the Bank rights. North Star State v. North mine). (Emphasis supplied witnesses. Minnesota, Bank 361 N.W.2d 889 Star Now, regard, I citing close in this to an old Bros., Inc., (Minn.App.1985). Phipps d/b/a master, Henry Campbell In Black. The Law Restaurant, Family used the (1912), Judicial Precedents he sets name Restaurant for governing principles applica- forth five in the period a considerable of time before Nelson’s him, judicial precedents. Quoting tion of Gas, Inc., Nelson’s Kor Oil & d/b/a principle: set forth third by infringed using a name —a name ner duty Third. It is the a court last appearance, similar in similar in which was by resort to abide it own its sound, meaning similar former decisions, depart vary not to goods and similar the nature from entirely satisfied, them in the unless wrong. This was a civil Health services. first decided, place wrongly were Spas, v. European Industries place, loill (D.S.D.1980). second less my opin mischief result their than overthrow Bros., ion, established common from from ap- perpetuation. proper their This Obviously, the law trademark. names of maxim, plication “stare decisis.” phonetically two these restaurants indis mine). (Emphasis supplied tinguishable. Finding of Fact #5 finds Bros.) (Phipps registered “Plaintiff trade us, precedent have handed recent before ‘Country mark Restaurant’ Court, jetti- by and we not down this should Secretary with the South Dakota on State Again, in 2 son our decision. I read former July 1990.” (1957), writing of John Vill.L.Rev. 367-369 Hanna, Role of in Judicial The Precedent dealer], competitor by A “trader” or [or Decision, “stare decisis” is the abbrevi- name, employing first a trade quieta form “stare decisis et non ated to which entitled have the business he has movere,” “to to mean which translated up protected built under such by to what is stand decisions and not disturb against competition unfair the part on quotes thereat: settled.” Hanna Blackstone traders, subsequent equity may rival and enjoin the use of such trade-names or simi- The of the law is this: that doctrine then by subsequent followed, names rival lar traders precedents unless and rules be necessary protect where flatly unjust; though business their or for absurd up by view, yet built the first dealer. at reason be not obvious first as to owe to former times such a deference Canyon Corp., Storm v. Amusement 76 S.D. they wholly acted without suppose Thus, in- mine). (Emphasis supplied consideration. junctive relief will in the case at lie hand. lawyers to a are entitled Regarding extensive discourse on the South Dakota’s law, continuity disregards rooted in a belief scope of review now our which Out, in the supra, I on this Court has ruled respect- reliance how Time reliance, they have a past. on such a fully dissent. In Time this Based Court decisions. viewpoint expectation future majority United reasonable This, turn, equates Enterprises, U.S.P.Q. into advice unto Love’s (D.Colo.1980). public. stay I on the course Time Out 1980 WL 30296 majority viewpoint in and the the United Another factor be considered in in- States. fringement case is the intent of Nelsons to AMUNDSON, (dissenting). Justice upon reputation Phipps’ good trade or O’Malley Exquisitos, will. Comidas operate family traditional (8th Cir.1985). McGee’s, Inc., & 775 F.2d 260 style restaurant in Hot South Dako- There is no evidence this record that ta, under the name of Corner Fami- requisite Nelsons had the intent in this case ly operation, Restaurant. In the customers profit Phipps’ from the name. by seated at tables and served waiter clothes, waitress. table napkins There are position The trial court was the best silverware at table. and each Service is of- testimony regarding hear the the issue of breakfast, for fered lunch and dinner. against Phipps. confusion and it found operate would not the trial gas Nelsons stations and hold that court erred in conve- Custer, ruling Edgemont respectfully nience stores in on this South evidence must Dakota, in Wyoming. as well as locations At dissent. facilities, diesel, gas,

these sell Nelsons

cards, beer, wine, welding supplies, liquor,

. supplies, rentals, automotive movie groceries, items, night

souvenir crawlers and fast food.

There is seating Edgemont limited their operation they

fast food cater where to the employees Burlington

railroad Northern. operated

These outlets are under the name Korner, open of Nelson’s and are Neyton BALTODANO, Dr. Plaintiff twenty-four day. hours a Appellant, There was a amount scant of evidence produced by regarding the issue of example confusion. dealt One with custom- NORTH CENTRAL HEALTH who ers issued checks their food wilt- INC., SERVICES, Defendant ing “Kountry Korner” rather than “Coun- Appellee.

try really Corner.” But does show con- Nos. on part fusion these individuals? obviously These customers wanted to dine at Supreme Court South Dakota. family a traditional restaurant did by choosing Also, Phipps’ restaurant. Argued Oct. part record showed some on the inadvertence Decided Dec. delivery persons. day In this age, say would dare that most individuals and receipt

businesses encounter delivery

something fact, that was not ordered. one clearly

invoice in this case had the Nelson it, delivery person

name on but the seemed disregard that fact. These minimal in- of alleged certainly

stances did not ordinary provident

disclose confusion of the

purchaser family style of a dinner. It businesses,

obvious these two due to the operation,

nature of their attempt distinct entirely

garner parts of different the food International,

dollar market. Wuv’s

Case Details

Case Name: Phipps Bros. Inc. v. Nelson's Oil & Gas, Inc.

Court Name: South Dakota Supreme Court

Date Published: Nov 24, 1993

Citation: 508 N.W.2d 885

Docket Number: 18008

Court Abbreviation: S.D.