85 So. 906 | La. | 1920
Statement of the Case.
Plaintiff company prays for an injunction, prohibiting the defendant corporation, and Henry Tharp, Isaac Sontheimer, Morris B. Sontheimer, Mar N. Kohler, and A. S. Tharp, and each of them, from using the name Tharp-Sontheimer-Tharp, Incorporated, or anything like or similar thereto, and from carrying on, in that name, the same business as that conducted by it, certain prior relations between them being set forth, and it being further alleged that the business and purposes of the defendant company are identical with those of plaintiff; “that the adoption * * * of the name ‘Tharp-Sontheimer-Tharp’ for the corporation carried on by defendant is in violation of paragraph (a) of section 2 of Act 267 of 1914, * * * which forbids any corporation to adopt a name similar to one already in existence or one so similar as to cause confusion with the name of any other domestic or foreign corporation admitted to do business in this state, * * * that the name TharpSontheimer-Tharp, Incorporated, was adopted, and is being used fraudulently, and with' the unlawful and fraudulent intention and attempt to palm off their [defendant’s] services, goods and business upon the public as the services, goods and business of your peti.tioner; * * * that in pursuance of the said unlawful and fraudulent intention and purpose the said defendants have used all means within their power to confuse the public and to cause the public to believe that, in calling upon them for services, they are dealing with your petitioners.”
There are further allegations of damages, with reservation of the right to sue therefor, and right to an injunction, and a prayer that the writ be issued and perpetuated.
The facts disclosed by the evidence are, substantially, as follows: As far back as 1883, A. F. Bultman was engaged in business in New Orleans as an undertaker, or undertaker and liveryman, and he so continued until about 1904, when he took his son, A. F. Bultman, Jr., into partnership with him. Between the years stated and prior to 1883 the firm of F. Johnson & Son Company, Limited, “was engaged in the same business,
In conclusion of this statement, it may be remarked that the various contracts and acts of incorporation to which we have referred contain nothing from which the inference could be drawn that either Tharp or the Sontheimers were not entirely free to withdraw from the business of Tharp-Bultman-Sontheimer Company at the time that they took that action, and were not free to make legitimate use of their own names to earn livelihoods for themselves and families.
Opinion.
The judgment appealed from is therefore affirmed.