72 Ind. App. 628 | Ind. Ct. App. | 1919
—Appellant instituted this action-against appellee on December 8, 1915, to enjoin the latter from using the word “Bankable,” as a trade name, or as a part of a trade name, for cigars, and to recover damages for a prior use thereof by appellee. Appellant’s complaint consists of six paragraphs, but the fourth paragraph was withdrawn. Appellee filed demurrers to each of the other paragraphs for want of facts, all of which were sustained. Appellant refused to plead further, and judgment was thereupon rendered against him for costs. He is now prosecuting this appeal, and has assigned the action of the court in sustaining appellee’s demurrers to the several paragraphs of his complaint as the sole errors on which he relies for reversal. The first paragraph of complaint alleges in substance, among other things, that for more' than five years appellant has been engaged in manufacturing and selling cigars throughout the State of Indiana, except in the counties of Kosciusko, Fulton, Pulaski, Wabash, Miami, Huntington, Whitley. Noble and Elkhart; that during such time he manu
A copy of the alleged agreement was filed with said paragraph of complaint as an exhibit. Said agreement contains, among others, the following provisions :
“That said first party has this day sold and does hereby sell, assign, transfer and set over to said second party all his rights in and to the trade name “Bankable,” and the use thereof as a trade name for cigars, cheroots and stogies, and hereby agrees that after the date of this contract he will not use the said name “Bankable” as a trade name or trade mark in the sale or manufacture of goods of the character aforesaid nor will he use said name in combination with any other words, figures, signs nr symbols as a part of a trade name, trade mark or device for the designation of any brand of goods of the character aforesaid, and said first party further agrees on his part not to use the said name “Bankable” as a trade name nor with other words, figures, signs or symbols as a part of a trade name for the designation of goods of the character aforesaid, as the agent of any other person, nor as a member of any copartnership, nor as the officer or agent of any corporation, nor will he become a stockholder in a corporation so using or attempting to use such name in such manner. * * * Said first party, however, re*634 serves the right to use the said name “Bankable” upon cigars,, cheroots and stogies, manufactured and sold by him for one year after this date to customers to whom he has heretofore sold such cigars, cheroots and stogies, but said first party shall acquire nor seek to acquire any new customers for such merchandise.”
The second paragraph of the complaint is the same as the first paragraph, except that it relies on the negative covenants of that part of the contract quoted above. The third paragraph of complaint includes the substance of both the first and second paragraphs and, in addition thereto, alleges facts with reference to the expenditure of money for advertising, which he contends creates an estoppel against appellee. The fifth paragraph of complaint includes the substance of the first and second paragraphs, but alleges in addition that the agreement in question was made between the parties thereto for the purpose of determining and fixing their rights in the use of .said trade name. The sixth paragraph of complaint contains substantially the same facts as the preceding paragraphs and, in addition thereto, certain facts as „ to conflicting rights and interests growing out of the use of the word “Bankable” by both parties, and alleges that the agreement in question was entered into for the purpose of avoiding such conflict and the confusion arising therefrom.
The .judgment is reversed, with instructions to overrule appellee’s demurrer to the second, fifth and sixth paragraphs of complaint, and for further proceedings consistent with this opinion.