107 So. 345 | Fla. | 1926
In 1920 the appellant, Samuel Sawilowsky, entered the retail shoe business in Jacksonville, dealing principally in children's shoes, stockings and their accessories. As a means of identifying his business before the public, and for the purpose of attracting and retaining patronage, he adopted the trade name "The Children's Bootery," under which name he conducted his business in Jacksonville continuously until August 17, 1922, when he was adjudicated an involuntary bankrupt. The petition in bankruptcy, and the order of adjudication, styled the bankrupt as "Samuel Sawilowsky, trading as Children's Bootery."
At the first meeting of creditors, it was resolved: "That the Trustee be, and he is hereby authorized to sell the assets of the bankrupt at public or private sale and subject to the approval and confirmation of the Referee without any further meeting of creditors or further notice of such sale." An order of sale was made in due course by the Referee in Bankruptcy, directing the Trustee to offer the stock of merchandise and fixtures of the above named bankrupt for sale at public outcry, Tuesday, September 26, 1922," pursuant to which the Trustee advertised for sale "the entire stock of ladies', misses and children's shoes, hosiery, findings and store fixtures of Samuel Sawilowsky, trading as Children's Bootery, bankrupt, 115 Main Street, Jacksonville, Florida, subject to confirmation of the Referee." The trustee subsequently reported, amongst other things, that at the time and place appointed in the advertisement he "offered the stock and fixtures (of the bankrupt) together with the good will and the trade name, and the highest and best bid obtainable was from Mr. Thomas C. Sutker for the sum of $10,020.00," and recommend that such sale be confirmed. The sale was confirmed by order of the Referee in Bankruptcy on September 27, 1922, in which order the sale *63 of the "good will and trade name" of the bankrupt was expressly recited. The trustee executed to the purchaser Thomas C. Sutker, who is the appellee here, a bill of sale conveying to Sutker: "the good will and trade name known as The Children's Bootery and identified with the store formerly conducted by the bankrupt, Samuel Sawilowsky, trading as The Children's Bootery, 115 Main Street, Jacksonville, Florida, Duval County. The entire stock in trade of shoes, hosiery, findings and fixtures located in and at the store, 115 Main Street, Jacksonville, Florida, Duval County." On September 30, 1922, the appellee Sutker reopened the store at No. 115 Main Street as a retail shoe store, under the name of "The Children's Bootery." The right to continue the use of such trade name as a designation for that business is claimed by appellee by virtue of the proceedings above referred to in the bankrupt estate of appellant Sawilowsky.
In September, 1922, Sawilowsky, the bankrupt, and his co-appellants Jacob L. Jacobs and Hyam Joel, applied to the Governor of Florida for letters patent incorporating themselves under the laws of Florida with corporate name "The Children's Bootery," for the purpose of operating a retail shoe business, under the management of Sawilowsky, at 103 Main Street, which location is on the same side of the street, and two doors removed from the location of the store which Sawilowsky, prior to his adjudication in bankruptcy, conducted as an individual under the trade name of "The Children's Bootery." Letters patent were issued in due course and the corporation opened its store for business at 103 Main Street, advertising and holding itself out to the public as "The Children's Bootery."
On October 5, 1922, Sawilowsky and his associates Jacobs and Joel, proceeding in the District Court of the United States for the Southern District of Florida, which *64 was the Court by which Sawilowsky was adjudicated a bankrupt, procured a rule against Sutker, seeking to have the bill of sale executed by Sawilowsky's trustee delivered up for correction by eliminating from the description of the property thereby conveyed all reference to the good will of the bankrupt's former business and the trade name "The Children's Bootery." Sawilowsky and his associates also filed in the court last mentioned a petition to review the order of the referee in bankruptcy confirming the sale of the bankrupt's assets. Upon hearing, the rule was discharged (In re: Sawilowsky, 284 Fed. 158) and the petition to review was denied (In re: Sawilowsky, 284 Fed. 975), both of which orders were subsequently affirmed by the United States Circuit Court of Appeals, Fifth Circuit. Sawilowsky v. Brown, 288 Fed. 533.
Appellant, The Children's Bootery, a corporation, and its co-appellants Sawilowsky, Jacobs and Joel, who were the incorporators of the corporate appellant, on October 11, 1922, exhibited their bill of complaint in the Circuit Court of Duval County, seeking to have appellee, Sutker, enjoined from the further use of the name "The Children's Bootery." The chancellor ordered a temporary injunction, as prayed, but later entered a further order dissolving same. Subsequently, upon the showing made by the appellee Sutker, who was defendant and cross complainant below, the chancellor entered an order enjoining appellants, complainants below, from "any use of the words 'The Children's Bootery' as a trade name in marks, brands, signs, labels or advertising matter." The Children's Bootery, a corporation, Sawilowsky, Jacobs and Joel, have appealed from the two orders last mentioned.
The right of appellee to use the trade name in question to the exclusion of appellants depends, first, upon the meaning and effect of the Bankruptcy Act of 1898, Section *65 70a (U.S. Comp. Stat. Sec. 9654); and, second, upon the regularity and sufficiency of the procedure in the bankrupt estate of Sawilowsky through which appellee Sutker became the purchaser of the bankrupt's shoe business, after which there is to be considered the right of the corporate appellant to carry on its retail shoe business under its own corporate name "The Children's Bootery" at the location and under the circumstances hereinabove recited.
The Bankruptcy Act of 1898, Section 70a (Comp. Stat. Sec. 9654), in so far as it is pertinent here, provides:
"The trustee of the estate of a bankrupt * * * shall * * * be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all (1) * * *; (2) interests in patents, patent rights, copyrights, and trademarks; * * * (5) property which prior to the filing of the petition he could by any means have transferred, or which might have been levied upon and sold under judicial process against him."
Appellant contends that trade marks and trade names, though entirely distinct from each other, are commonly associated in ordinary thought and parlance, and that the omission of the term "trade names" in subdivision (2) of Section 70a, where the bankrupt's interest in patents, patent rights, copyrights and trade marks is specifically mentioned, indicates that the omission was ex intentione and that the design of Congress was to preserve to the bankrupt the right to use his former trade name in re-establishing himself in business after his discharge in bankruptcy. Appellants further contend that the omission in subdivision (2) of the section mentioned can not be supplied through the general provisions of subdivision (5), because, applying the rule of ejusdem generis, trade names are still excluded from those assets of the bankrupt which pass to the trustee. *66
The argument of appellants, though unusually forceful, is counter to the settled weight of authority established by many decisions. Trade names, when lawfully acquired and properly identified with the physical properties and good will of a business, are generally recognized as property which may be lawfully transferred by its owner in connection with the business with which they are so identified. As such, under the provisions of subdivision (5) of Section 70a, a trade name, lawfully identified with the business of the bankrupt at the time of his adjudication, would unquestionably pass to the trustee as an asset of the estate, unless an application of the doctrine ejusdem generis requires a construction of that section which would exclude trade names from the effect of its provisions.
Literally translated, "ejusdem generis" means "of the same kind or species." Briefly stated, the doctrine of ejusdemgeneris, when employed as an aid to statutory construction, is that where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated. 19 C. J. 1255, and cases cited. But the rule does not necessarily require that the general provision be limited in its scope to the identical things specifically named. So applied, the rule would render the subsequent general phrase entirely inoperative, and thereby violate another salutary rule of construction, namely, that every part of a statute should, if possible, be sustained and given appropriate effect. Misch v. Russell,
There is a recognized distinction in many respects between a technical trade mark and a trade name, though the terms are sometimes treated by able courts as substantially *67
synonymous. One of the principal distinctions is that a valid trade name sometimes consists of words which when applied to the merchandise itself are generic or descriptive and hence not susceptible to appropriation as a technical trade mark. It has been held by good authority that a trade mark usually relates principally to the identity of the commodity offered for sale, while, in addition to this, a trade name designates or indicates the source of manufacture or sale of the article or the individuality or identity of its maker or seller, and further, that the law of trade marks is designed principally for the protection of the public from imposition while the law with respect to trade names is for the protection of the party entitled to use the name, as well as for public protection. Armington v. Palmer, 21 R. A. 109;
A trade name exists as an incident of the business in which it was lawfully acquired and with which it remains identified. As a mere abstract right, having no reference to any particular property, commodity or business, it can not exist. Separated from the business to which it belongs and with which it is identified, it is not a species of property and can not be sold or transferred as such. American *69
Steel Foundries v. Thomas E. Roberts, Commissioner, decided by the Supreme Court of the United States at the October Term, 1925; opinion filed January 4, 1926. The physical elements or assets of a business may not be sold to one and the good will and trade name thereof to another, for when the good will and trade name is separated from the business to which it applies it is thereby destroyed and can not thereafter be the proper subject of a sale. As it is sometimes expressed, "the shadow cannot be separated from the substance." In re: Jaysee Corset Co. 201 Fed. 779; Rodseth v. Northwestern, etc. Wks.,
Because of these peculiar qualities which inhere in trade marks and trade names as property, it has been held by the courts, with great uniformity, and perhaps may now be said to be the general rule, that, in a voluntary sale of a business as an entirety, trade marks and trade names which have been lawfully established and identified with such business will pass to one who purchases as a whole the physical assets or elements of the business, even though not specifically mentioned in the conveyance. Wilmer v. Thomas,
In this case, the physical assets, including the fixtures, were purchased as an entirety by the appellee Sutker, the sale being made, as advertised, at the bankrupt's former business location. In addition to the entire physical assets, the trustee expressly sold, and by the bill of sale in terms conveyed to the purchaser the good will and trade name identified with the bankrupt's former business, which sale was confirmed by the Referee in Bankruptcy, in an order expressly reciting the sale of the good will and trade name, and such sale was subsequently approved by the United States District Court, Southern District of Florida, in which the matter was pending. The trustee's advertisement of sale gave notice that he would sell "the entire stock of ladies', misses' and children's shoes, hosiery, findings and store fixtures of Samuel Sawilowsky, trading as Children's Bootery, bankrupt, 115 Main Street, Jacksonville." Even if it be that the bankrupt's trade name would not pass by such a sale by operation of law and without specific mention either in the advertisement or bill of sale, we regard the action of the trustee in specifically selling and conveying the good will and trade name of the bankrupt in connection with the physical assets, under the circumstances stated, as within the intendment of the advertisement. It therefore follows that appellant Sawilowsky, as an individual, by his adjudication in bankruptcy, was divested of all interest in or right to the use of the trade name in question, and that the appellee Sutker acquired the former right of Sawilowsky to the exclusive use of the trade name in connection with the business with which it was identified. Appellants Jacobs and Joel, so far as we are able to ascertain from the record, have never acquired, as individuals, any rights of any nature in connection with the use of the trade name under consideration. The corporate appellant, The Children's Bootery, does not claim the *72 right to use the trade name, "The Children's Bootery" as an assignee of or otherwise under Sawilowsky, its originator, but claim by right of independent acquisition, namely, the right to its use as its own corporate name.
The selection of a corporate name is largely controlled by those who seek that form of business organization. It is chosen with a view to the business in which the corporation is presently to engage. In assuming its name, a corporation acts at its peril. Its organizers are charged with the duty of selecting a name which will not result in material deception. Juvenile Shoe Co. v. Federal Trade Commission, 289, Fed. 57; Metropolitan Tel. Co. v. Metropolitan Tel Co.,
It is further contended by appellants that the restraining order against them, granted at the instance of Sutker, is too broad in its terms, in that it restrains appellants fromany use of the name, The Children's Bootery, within *74
the jurisdiction of the Court below. The language of the decree is general, but it should be interpreted with reference to the pleadings and proceedings in the case Pearson v. Helvenson,
That the phrase "The Children's Bootery" is a valid trade name and entitled to protection as such is conceded by the pleadings, and that question is therefore not before us. Indeed, none of the parties hereto are in a position to raise the point.
The two orders appealed from are affirmed.
BROWN, C. J., AND WHITFIELD, ELLIS, TERRELL AND BUFORD, J. J., concur.