80 N.J. Eq. 90 | New York Court of Chancery | 1912
Complainants are owners of a business conducted by them as partners in three certain stores fronting on the. boardwalk in Atlantic City, the business in each store being conducted imder the trade-name of “London Shop.” The business so conducted is that of retail stores for the sale of gentlemen’s furnishing-goods, bats, caps and ladies’ millinery, ' Since the establishment of complainants’ ’business under the name stated, defendant has
On the application for a preliminary injunction, I summarized my view of the law controlling controversies of this class as follows:
“This court may appropriately protect a.complainant against unfair competition when it is found that the defendant is conducting a business in such manner that there exists upon the part of defendant express or implied representations that the business conducted by defendant is that of complainant. The reputation and good will which á man acquires are property rights which are entitled to protection against wrongful invasion, and the pxrblic is entitled,..to protection against fraud. A'trade-name appropriately used to designate a particular business of certain individuals will, in consequence, be protected. See 28 Am. & Eng. Encycl. L. (2d ed.) 345, 348. The present inquiry is, therefore, whether defendants have adopted a trade-name so nearly resembling the trade-name of complainant as to deceive the public and. injure complainant. It is manifest that the extent of resemblance of the names used is not the sole criterion. A name quite similar may be so used as not to deceive or injure; a name quite dissimilar may be used in such manner as to deceive and injure.”
Preliminary relief was refused because it did not then appear with sufficient certainty that complainants’ rights had been or would be materially invaded to justify this court in granting a preliminary injunction.
But assuming that the name “London Shop” as used by complainants is wholly free from any criticism of the nature suggested, I am unable to conclude that defendant has entered the field of unfair competition in the use of the name “Page of London.” As already stated, there is no resemblance between the two names used by the respective parties, except such as arises from the common use of the word “London;” and the only danger of confusion from the use of the two names appears
Complainants have received telephonic messages and mail relating to purchases made at defendant’s store, and have received by express and otherwise goods which have been purchased at defendant’s store accompanied with requests for their exchange or a return of the purchase price. In one instance a customer at one of the stores of complainants was sent to another store of complainants for a specific article and the customer went to defendant’s store by mistake. These occurrences disclose some confusion which it is urged is to be attributed to a similarity of the two trade-names. It is quite possible that the confusion referred to has arisen from the use of the word “London” as a part of the trade-name of both contending parties; but such Confusion is, in my judgment, to be ’more appropriately attributed to extreme carelessness and inattention upon the part of the customers who have made the specific errors referred to. Complainants have no property right to the exclusive use of the word “London” in connection with their business. The}r are only entitled to protection against unfair competition by defendant ; they are entitled to be protected against defendant passing his goods or business as complainants’ goods or business, and the test is whether or not the public is likely to be deceived. Concrete instances of confusion which can only be appropriately attributed to extreme carelessness or inattention on the part of customers are clearly inadequate to establish a similitude which does not in fact exist. I am unable to believe that the name “Page of London,” used in the manner in which it is being used by defendant, is operative to deceive or mislead any reasonable person by reason of its resemblance to the name “London Shop,” or to improperly divert complainants’ trade.
I will advise an order dismissing the bill.