20 Mo. App. 96 | Mo. Ct. App. | 1885
delivered the opinion of the court.
In 1871 the plaintiff began the practice of dentistry at number 820 Washington avenue, in St. Louis, under the business name and style of “New York Dental Rooms. ’ ’ In 1872, he caused the words, “ New York Dental Rooms,” to be registered as the trade name by which he designated his business. He advertised his business extensively under this name, and, in the course of time, built up a large and lucrative practice, at a cheap scale of prices, principally among laboring people.
In 1880 or 1881, the defendant opened a dental establishment at number 808 Washington avenue, a few doors east of the plaintiff’s on the same side of the street, under the name of the “ Newark Dental Rooms.” About two months prior to the bringing of the present action, the defendant removed from that number to a place but two doors from the place of business of the plaintiff, a single shop or store separating them. He displayed signs bearing the words “Newark Dental Rooms,” similar in appearance to the signs of the plaintiff. He used a printed form of contract with his customers which bore a marked resemblance to that used by the plaintiff. Persons in search of the plaintiff’s establishment for the purpose of having work done sometimes went into the Newark Dental Rooms by mistake and had the work done there. After the defendant established this business with this sign and trade name near the plaintiff, the plaintiff’s business fell off to an appreciable extent. Aside from the resemblance of the defendant’s trade
Upon this state of case, upon a petition in equity by the plaintiff, a decree was rendered perpetually enjoining the defendant from in any manner using the word “Newark,” or any word similiar in sound or appearance to the word “New York” in or upon any sign, card, or advertisement, or otherwise in connection with or in carrying on the practice of dentistry in the city of St. Louis. From this decree the defendant prosecutes this appeal, urging that there is no equity on the face of the petition; that the facts d© not justify the relief granted, and that the plaintiff’s right to relief is barred by his laches in not making objection sooner.
We are of opinion that the decree is right and that it should be affirmed. The case falls within the rule stated in McCartney v. Garnhart (45 Mo. 593), that to justify an injunction in such a case it should appear that the resemblance between the two trade marks or trade names is sufficiently close to raise a probability of mistake on the part of the public, or to show a design to mislead and deceive on the part of the defendant. In the case of the c £ What Cheer Restaurant,” which was analogous to the present case, we applied this rule and sustained an injunction. Gamble v. Stevenson, 10 Mo. App. 581; see, also, Sanders v. Utt, 16 Mo. App. 322.
In the present case both of these elements concur. There was sufficient resemblance between the two signs to raise a probability of mistake on the part of the class of customers that frequented the plaintiff’s place of business. The evidence further shows that such mistakes actually occurred. It further satisfies us that the defendant intended that they should occur.
The judgment of the court will be affirmed. It is so ordered.