67 N.J. Eq. 529 | New York Court of Chancery | 1901
The object sought by the complainant is the restraining of the defendant from using the name of “Brand & Smith” on its business signs and wagons, or in its other methods of advertising. The facts disclosed by the bill of complaint and answering affidavits are as follows: For many years previous to 1904, the complainant and David IT. Brand were engaged in business as partners, trading under the firm name of “Brand & Smith;”
In Levy v. Walker, 10 Ch. Div. 436, it appears that in proceedings taken to dissolve the partnership of Charbonel & AYalker, the court decreed a sale of the assets of the firm, includ-. ing its good will and business, and directed that after sale a proper deed of assignment should be executed by the non-purchaser or non-purchasers. At the sale, Miss Walker, one of the partners, became the purchaser, and in compliance with the terms of the decree the non-purchasing partner executed the deed of transfer to the purchaser by the terms of which she assigned; transferred and released all her right, share and interest in and to the business, “and the good will thereof.” The purchaser continued to conduct the business under the name of “Charbonel & Walker,” and the retiring partner having engaged in a similar business, using the name of “Charbonel,” sought to restrain Miss Walker from using the name of the firm whose business and good will she liad purchased. On appeal it was held, reversing the order of the vice-chancellor allowing the injunction, that the right to use the name of “Charbonel & Walker” was conveyed by the assignment of the good will of that firm, and that as between the vendor and purchaser of the good will, that right was the exclusive property of the purchaser, and that the trade name,
In Snyder Manufacturing Co. v. Snyder, 31 L. R. A. 657, a copartnership existed and the business was carried on under the firm name of “Snyder Manufacturing Co.;” this partnership was dissolved through the appointment of a receiver, who, by direction of the court, sold the assets and good will of tin-firm at auction; the purchaser was one of the j)artners, who thereafter organized a corporation with the name of “The Snyder Manufacturing Co.;” Snyder, one of the partners in the old firm, sought to enjoin the use of his name as a part of the title of the corporation which was continuing the old business. The court refused an injunction, saying, that it is well settled when a partner sells his interest in the business to a copartner without a reservation or exception of the good will, the purchaser is entitled, not only to continue the business in the name of the firm, and as its successor, but he ma}'' prevent the selling partner, or other person from (Tarrying on business in that way, and that where the purchaser transfers the property so acquired by him to a corporation of which he is a member, organized to succeed to the business, it may carry on the business in the same manner under a corporate name, including the name which had been used by the firm, and that if it is desired to limit the right of the purchaser or his vendee in the use of the firm name, or exclude
The complainant very strongly urges the proposition that the use of the name of “Brand & Smith,” as used by the defendant, is calculated to deceive tire public, and is likely to create confusion with reference to the identity of the two firms. I am not disposed to accord any persuasive power to this argument. The name of “Brand & Smith” is not calculated to mislead the public into a belief that it represents the business carried on under the name of “William Smith & Brother,” nor that the business of the latter firm will be in any way affected by a confusion of names. In support of his argument, counsel for complainant has called the attention of the court to two cases in this state (Van Horn v. Coogan, 52 N. J. Eq. (7 Dick.) 380, and Newark Coal Co. v. Spangler, 54 N. J. Eq. (9 Dick.) 354), but neither of these cases establishes any principle contrary to the view-s I have expressed. In the first case the defendant offered for sale an 'article, adopting for descriptive purposes a name by which quite a different article was known in the trade, with the manifest intention of misleading the public into a belief that he, the defendant, was offering to sell an article which had obtained public approval. In other words, the defendant was endeavoring to put off his goods as the goods of a rival trader. To such condition exists here. It is not pretended that the defendant is endeavoring to sell its goods as the goods of the complainant. In the second of the eases last referred to, the only question involved was the right of the defendant to advertise himself as having been formerly connebted with a rival business enterprise, and the effort to restrain the defendant, Spangler, from making such an announcement in the advertising of the business, did not meet the approval of this court. It seems to me to be very clear that the defendant in this cause has not exceeded its rights, and that the complainant is not entitled to the relief he seeks, and 1 will so advise. ■