D-E-W Foods Corp. v. Tuesday's of Wilmington, Inc.

225 S.E.2d 122 (1976) 29 N.C. App. 519

D-E-W FOODS CORPORATION
v.
TUESDAY'S OF WILMINGTON, INC., et al.

No. 7510SC918.

Court of Appeals of North Carolina.

June 2, 1976.

Allen, Steed & Pullen by Thomas W. Steed, Jr., and D. James Jones, Jr., Raleigh, for plaintiff-appellant.

Mills & Coats by Larry L. Coats, Raleigh, and Marshall, Williams, Gorham & Brawley by Lonnie B. Williams and Daniel Lee Brawley, Wilmington, for defendants-appellees.

HEDRICK, Judge.

Plaintiff assigns as error the entry of summary judgment for defendants. It contends the record raises genuine issues of material fact.

Even where the record discloses that there are genuine issues of fact, if the uncontroverted facts show an essential element of plaintiff's claim is non-existent, defendants are entitled to judgment as a matter of law and summary judgment is appropriate. Zimmerman v. Hogg and Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). While the record before us discloses that there are issues of fact as to the degree of similarity between the restaurants of plaintiff and defendants, and as to whether defendants have copied the restaurant design of the plaintiff, the following facts are not in controversy:

1. Plaintiff admits that the name "Tuesday's" is not "in and of itself confusingly similar" to the name "Darryl's", and the name "Tuesday's" is conspicuously and extensively used in connection with defendants' restaurant services.

2. Plaintiff's four "Darryl's" restaurants are not of a common size or design relative to each other and are not even substantially similar in exterior design.

3. "Tuesday's" is in Wilmington, 117 miles from the nearest "Darryl's" restaurant in Greenville.

Plaintiff's action for an injunction and damages from the defendants is based on the theory that defendants have attempted to "palm off" or "pass off" their "Tuesday's" restaurant to the public as being owned by or identified with the "Darryl's" family of restaurants. "The underlying principle, which is the foundation of relief in this class of cases, is that one trader shall not compete with another for public patronage by adopting intentionally means adapted to deceive the public into thinking that it is trading with the latter when in fact dealing with the former, and thus palming off his goods as those of another." Summerfield Co. v. Prime Furniture Co., 242 Mass. 149, 155, 136 N.E. 396, 398 (1922). Accord, Steak House v. Staley, 263 N.C. 199, 139 S.E.2d 185 (1964); Cab Co. v. Creasman, 185 N.C. 551, 117 S.E. 787 (1923). Plaintiff is entitled to protection "to prevent reasonably intelligent and careful persons from being misled" as to the source of the business which defendant operates. Steak House v. Staley, supra. See also, Sears, Roebuck and Co. v. Stiffel Co., 376 U.S. 225, 84 S. Ct. 784, 11 L. Ed. 2d 661 (1964); Compco. Corp. v. Day-Brite Lighting, 376 U.S. 234, 84 S. Ct. 779, 11 L. Ed. 2d 669 (1964); Beconta, Inc. v. Larson Industries, Inc., 330 F. Supp. 116 (N.D.Ill.1971).

The uncontroverted facts disclosed here demonstrate that the public could not be deceived into believing that they were patronizing one of "Darryl's" restaurants when they ate at "Tuesday's". Even if the defendants' restaurant is so designed both in its interior and exterior and its business operation as to resemble either one or more or all of plaintiff's restaurants, we are of the opinion that the distance between the defendants' restaurant and the nearest "Darryl's" restaurant, Allen's Products Company v. Glover, 18 Utah 2d 9, 414 P.2d 93 (1966), coupled with the conspicuous and admittedly dissimilar name, Steak House v. Staley, supra, removes as a matter of law any possibility that the defendants are palming off their restaurant as one of the "Darryl's" family of restaurants. Accordingly, the motion for summary judgment was properly granted.

Plaintiff has brought forth one other assignment of error relating to the judge's discretionary rulings made after the granting of summary judgment for the defendants on plaintiff's motions for leave to add additional parties defendant, to amend the complaint, to file supplemental pleadings and to extend discovery. This assignment of error has no merit.

Summary judgment for defendants is affirmed.

Affirmed.

MORRIS and ARNOLD, JJ., concur.