DocketNumber: Docket No. 83
Citation Numbers: 178 Mich. 43
Judges: Bird, Brooke, Kuhn, McAlvay, Moore, Ostrander, Steere, Stone
Filed Date: 12/20/1913
Status: Precedential
Modified Date: 9/8/2022
Complainant, who has been engaged in the wholesale .and retail grocery business in - the city of Detroit for many years, and, among other things, selling and keeping for sale oleomargarine, or butterine, filed his bill of complaint in the circuit court for the county of Wayne, in chancery, against defendant, Library Tea Company, a corporation, engaged, among other things, in the business of selling oleomargarine. Complainant alleges that in April, 1909, to designate a certain brand of butterine he adopted the trade-name “yellow special,” and extensively advertised continuously in the newspapers, and
Upon the hearing of the case complainant abandoned any and all claim by reason of a trade-mark, as appears by his statement in the record, and as also appears in the opinion of the court, as follows:
“Counsel for complainant rests his case, not on the trade-mark law, but on the ground of unfair trade.”
It follows that the issue is narrowed to the one question as to whether, under the facts shown by this record, defendant in the use of the name “yellow special” in advertising oleomargarine for sale was guilty of unfair trade. The record shows that the bill was planted upon the theory that complainant was the owner of the words “yellow special” as his lawful trade-mark and his exclusive property, which without lawful right defendant was using to his injury. During the trial he admitted that he had no lawful trademark, but insisted that this was a trade-name which he had appropriated and used for the term of about two years, having spent a large amount of money in advertising such trade-name, and that defendant’s use of the words “yellow special” was unfair trade and to his damage. The record shows that he had used these words for a term of two years, during 1909 and 1910. It appears from the proofs that the president and general manager of defendant company in 1903 and 1904 had sold “yellow special” butterine; that other dealers in Detroit had advertised and sold
“There is no showing that defendant ever tried to palm off his oleomargarine as the same product sold by complainant, or that the public in asking for defendant’s product thought that it was procuring the same goods offered by complainant, or that defendant’s clerks attempted to deceive the public.”
Further:
“In the case under consideration the defendant made it appear not long before complainant used this name others had used it. This, with the short period of time complainant has used it, seems to take the case out of the decisions to which I have been referred.”
These findings by the court are supported by the uncontradicted evidence, and dispose of complainant’s contention that by long term of years he had become entitled to the use of “yellow special” as a trade-name. The court, in his opinion, held:
“There is, however, a property value in advertising. Complainant, with the use of this term, was in the field before the defendant. He had spent money and given time and thought to make it valuable”— and upon that ground granted complainant relief.
The Supreme Court of the United States in a leading case, in an opinion written by Mr. Chief Justice Fuller, has said:
“The essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another, and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.” Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118 (25 Sup. Ct. 609).
The record in the instant case shows that defendant did not sell defendant’s goods as those of com
The decree of the circuit court is reversed, and the decree will be entered in this court dismissing his bill of complaint, with costs of both courts in favor of defendant.