Citation Numbers: 19 Ohio App. 388, 4 Ohio Law. Abs. 18
Judges: Funk, Pardee, Washburn
Filed Date: 11/6/1925
Status: Precedential
Modified Date: 1/13/2023
This case comes into this court on appeal. For the sake of convenience, the plaintiff and defendants will he referred to as if suit
There is practically no dispute as to the facts; the matter in issue is- as to the interpretation to be drawn from the facts and the law applicable thereto.
Some years before 1921 certain persons who had adopted the word “KAY” as a name under which to transact business established two stores in the city of Akron — one on the east side and one on the west side of South Main street, practically opposite each other, in the busiest block in the city. The store on the east side was used for the retail selling of clothing on a credit basis, and in advertisement and sign was known as “The Kay Clothing Co.” The store on the west side was used for the retail selling of jewelry on a credit basis, and by advertisement and sign was known as “The Kay Jewelry Co.” The word “KAY” had no relation to the names of any of the parties, or to the business conducted, but was merely a trade name adopted by the owners of the two stores, which, as has been said, were owned by the same parties.
These stores were conducted by corporations organized by said parties, and in the fall of 1921 both companies became financially embarrassed and both filed petitions in bankruptcy, and in December, 1921, the trustee in bankruptcy sold to plaintiff, or to his predecessor in title, the bankrupt jewelry company’s stock and the léase of¿ the storeroom then occupied by the jewelry company and now occupied by plaintiff. A few days later the trustee in bankruptcy sold to the defendant, or his predecessor in title, the stock of cloth
In January, 1922, the purchasers of the stores went into possession of the same, and in each store there was conducted the same business as before such sale. As has been said, we will refer to above purchasers as the plaintiff and defendant in this action.
Plaintiff permitted to remain in front of his storeroom the same electric sign which formerly advertised the business conducted therein, and defendant permitted to remain in front of his storeroom the same electric sign which formerly advertised the business conducted therein. In both of said signs the word “KAY” was prominent, and, ever since, the signs have remained the same. Plaintiff expended for newspaper advertising of his business a large sum of money, and defendant likewise expended for the advertising of his business a large sum of money, and each conducted his respective business separately and independently of the other, but each of them made prominent in the transaction of his business, and the advertisement thereof, the word “KAY.”
Shortly before the beginning of this action, defendant concluded to install in his' clothing store a jewelry department, acquired additional floor space for that purpose, and commenced making arrangements to install fixtures and a stock of goods. Plaintiff, learning of that fact, protested, and before the defendant began the sale of jewelry
Counsel for plaintiff do not claim that the defendant cannot engage in the sale of any article other than clothing under the name “KAY,” or that the defendant cannot be permitted to engage in the sale of jewelry, but do claim that the defendant cannot legally apply the name “KAY” to articles of jewelry to be sold by him, counsel saying that “they may apply the name ‘KAY’ to washing machines, to hardware, to sporting goods, to musieal instruments, to any other line or class of goods which they may choose to sell. They may sell jewelry, but may not sell it as ‘KAY’ jewelry, and must adopt some name relative to their jewelry which will entirely distinguish their jewelry from ‘KAY’ jewelry.” It is asserted that so far as the territory in which the parties sell is concerned, the plaintiff has acquired a property right in the trade name “KAY” as applied to jewelry, and that this property right belongs exclusively to him.
Certainly the word “KAY” is not descriptive of a business or profession, nor is it descriptive of
In this respect the parties are in much the same position as they would be if each of them was named Kay and had the right accorded him under the law to use his own name in connection with his own business. The law accords to a person the right to honestly use his own name in connection with his business, even though such use results in competition with another who has personalized such name in his business. Of course, such use must be honestly made, without purpose of deceiving, and not made in such a way as to unnecessarily deceive the purchasing public and gain business which but for such unfair practice would go to another. Howe Scale Co. v. Wychoff, Seamans & Benedict, 198 U. S., 118; Brown Chemical Co. v. Meyer, 139 U. S., 540; Singer Mfg. Co. v. June Mfg. Co., 163 U. S., 169, and E. A. Pflueger Co. v. The Enterprise Mfg. Co., 85 Ohio St., 450.
There is no claim that a trade-mark is involved in this case, for the word “KAY” or the words “KAY jewelry” do not indicate either by their own meaning or by association the origin or ownership of any article of trade.
Plaintiff can complain, if at all, only on the theory that the defendant by adding a line of jewelry to his business is guilty of unfair competition: “Relief in equity to restrain unfair trade is granted only where the defendant, by his marks, signs,
The use by the defendant of the trade name “KAY” and the sale of “jewelry” in a business conducted under that name, when there is no jewelry manufactured or produced by “KAY” and the jewelry sold is that of various manufacturers common to the trade, do not establish that the name “KAY” has any significance or meaning as to the origin of the jewelry sold by plaintiff, so as to distinguish that jewelry from any other jewelry; hence the public cannot be deceived as to the character, kind or quality of the jewelry, the only possible confusion being as to the person with whom the public is dealing, and the plaintiff having chosen to dear with the public not under his own name, but under a fictitious name under which defendant also has a right to deal with the public, cannot compel the defendant to forego his right to transact his business under the trade name “KAY,” although some purchasers of jewelry may be somewhat confused as to whether they are dealing with the plaintiff or the defendant due to their use in common of the name “KAY.”
If the rule laid down in Goodyear’s India Rubber Glove Co. v. Goodyear Rubber Co., supra, has been broadened by later decisions to such an extent that, independent of a property right in a name, it may now be conceded that where one has established a trade and carried it on under a given name
Here the defendant has not assumed such name; he has as much right to use the trade name “KAY” as has the plaintiff, he having used the same as long as plaintiff has and having contributed as much or more in the way of advertising and dealing to make the same valuable. He has as much right as the plaintiff to sell jewelry; neither of them is selling jewelry which is in any way described by the term “KAY.” That term has not acquired a secondary significance, denoting the product of a particular person. Although plaintiff is doing business and selling jewelry under the name “KAY,” there is no such thing as “KAY” jewelry; all that there is is jewelry common in the trade sold by “KAY.”
Anyone else who has the right to use the trade name of KAY has the right to sell jewelry, provided he does nothing to deceive the public, and induce persons dealing with him to believe that they are dealing with plaintiff, except use the trade name “KAY.”
The defendant has an established clothing business Avhich he has been conducting for many years under the trade name of “KAY;” the mere fact that he has added to his business a jewelry de
We do not find that the defendant has been guilty of any intentional deception, or that by his advertisements or otherwise he has adopted business practices which are likely to deceive the public, or which unduly deprive plaintiff of his legitimate business. We think that so long as the defendant conducts his business in accordance with his declared intention, as shown by the record, he will be doing that which he has a right to do, and that the rights of the plaintiff will not be violated thereby.
Finding nothing in the conduct of defendant calling for the imposition of restrictions to prevent actionable injury which it is feared may result, a decree may be drawn dismissing plaintiff’s petition.
Petition dismissed.