The Henry Perkins Co. v. Perkins, 246 Mass. 96

246 Mass. 96 | Mass. | 1923

DeCourcy, J.

The plaintiff, a corporation located at Bridgewater, seeks by this bill to restrain alleged unfair trade by the defendants, doing business in Taunton as a partnership under the style of The H. K. Perkins Company. These are the material facts, as found by the master: One Henry Perkins carried on business as a machinist and foundryman in the town of Bridgewater from 1885 until his death in 1901. From the beginning he manufactured and sold tack machines, which were advertised and known on the market as “ Perkins Tack Machines; ” and from 1890 he manufactured wire nail machines, which were sold as the “ Perkins Wire Nail Machines,” and were known as such by the purchasing public in New England, the Middle West and Canada. About sixty tack machines and thirty wire nail machines were manufactured and sold each year. After the death of Henry Perkins the business was carried on by his estate for six months, and subsequently by the plaintiff corporation, which was organized by his heirs in 1902. From that time until 1918 these machines were advertised and sold by the plaintiff, and by no other person or concern, as “ Perkins ” machines; they were generally known to the trade as the “ Perkins ” tack and wire nail machines, and as being manufactured by The Henry Perkins Company of Bridgewater. As the trial judge has found, “ . . . the name ‘ Perkins ’ as applied to such machines had come to signify in the market such machines of the plaintiff’s manufacture.”

In 1918 the defendants withdrew from the plaintiff corporation, and established at Taunton a business which competed with the plaintiff, especially in unpatented tack and wire nail machines. They formed a partnership: but the style adopted was “ The H. K. Perkins Company.” In their advertisements H. K. Perkins appeared as treasurer and manager, Eben Perkins as president, and Charles 0. Breach as vice-president. While their main business was that of brass founders and finishers, they advertised as “ Manufacturers of . . . Perkins’ Tack and Wire Nail Machines: ” of the Blanchard Tack Machine, “ Perkins Improved Pattern . . . Layout of centers and spindle identical with original ' Perkins’ Machine ’ but more Compact and Solid.” They did not make the machines themselves, but had manufactured under their direction, and have sold, fifty-six wire nail machines and one tack machine. It should be said in favor of the defendants that they did not solicit orders for these machines from the three concerns that purchased them; and that these purchasers knew that The H. K. Perkins Company was not identified with The Henry Perkins Company.

As was said by Sheldon, J., in C. A. Briggs Co. v. National Wafer Co. 215 Mass. 100, 103, “ . . . a merely descriptive epithet or the name of a person or of a place may become so associated with a particular kind of goods, or with the specific product of a particular manufacturer, that the mere attaching of that word to a similar product without more would have all the effect of a falsehood; and in such a case, while the use of that word cannot be absolutely prohibited, it may be restrained unless accompanied by sufficient explanations or precautions to prevent confusion with the goods of the original manufacturer or vendor.” There is much in the master’s report indicating that the defendants’ conduct was not actuated by a fraudulent intent to deceive; nevertheless their advertisements are likely to deceive prospective purchasers of tack and wire nail machines by conveying the impression that they are the manufacturers of the well known “ Perkins ” machines, and so mislead those to whom both parties look for business. There is ample support for the conclusion that the word “ Perkins ” has acquired a secondary meaning in trade, as indicating the machines manufactured by this plaintiff. Viano v. Baccigalupo, 183 Mass. 160. Libby, McNeill & Libby v. Libby, 241 Mass. 239, 242, and cases cited. Ninas on Unfair Competition (2d ed.) § 72. The facts that the machines sold by the defendants were not inferior in quality to those manufactured by the plaintiff, and that, others may have infringed upon the plaintiff’s legal rights, constitute no defence. Grocers Supply Co. v. Dupuis, 219 Mass. 576. On the facts as found, the trial judge was warranted in enjoining the defendants “ from using the word ‘ Perkins ’ as the name or description or as a part of the name or description of any tack or wire nail machine not manufactured by the plaintiff.”

The judge was also warranted in refusing to enjoin the defendants from doing business under the name of “ The H. K. Perkins Company.” In fact, in September, 1921, while the case was before the master, the defendant Harry K. Perkins sold out his interest in the partnership and it has since been conducted by the defendants Eben Perkins, C. O. Breach, and one M. A. Perkins under the firm name and style of The Perkins Company. See Burns v. William J. Burns International Detective Agency, Inc. 235 Mass. 553.

Decree affirmed.