Terry v. Cooper

Hart, J., (after stating the facts). At the outset it may be stated that, in respect to corporate names, the same rule applies as to the names of firms or persons, and an injunction lies to restrain the use by one corporation or firm of the name of a prior, corporation which tends to create confusion, and to enable the later corporation or firm to obtain, by reason of the similarity of names, the business of the prior one. Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490, 27 L. R. A. 42; Brunson v. Reinberger & Collier, 134 Ark. 211, 203 S. W. 269; McLean v. Fleming, 96 U. S. 245; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118; Donnell v. Herring-Hall-Marvin Safe Co., 208 U. S. 267; and Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U. S. 554. . In the case last cited it was held that, although, the trade name may not be mentioned in the sale of a business taken over as a going concern, a deed conveying trademarks, patent rights, trade rights, good will, property, and assets of every name and nature, is broad enough to include the trade name under which the vendor corporation and its predecessors had achieved a reputation. So it may be said that the general language used in the bill of sale to Bickner was broad enough to include the trade name of the corporation selling its assets to him and his associates. The principle of the cases upon the subject of enjoinr ing a person from using the trade name of another person or corporation proceeds upon the theory that it is a fraud on a person or corporation which has established, a trade name and carries on its business under that name, that some other person or corporation should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him or it in the belief that they are dealing with a person or corporation which has given a reputation to the name. In applying the rule to the facts and circumstances sh'own in the record in this case, we do not think there is sufficient evidence to justify the issuance of an injunction. The stockholders of The Terry Abstract Company, of their own volition, changed the name of that corporation to the. Chickasawba Abstract & Investment Company, and thereafter conducted its business under that name. It is true that the printed stationery of The Terry Abstract Company was used, but a rubber stamp was used which made the letterheads read, “Chickasawba Abstract & Investment Company, Inc., successors to The Terry Abstract Company.” This manifested an intention upon the part of the stockholders of the corporation not only to change the name of the corporation, but to conduct its business under the new name, and to inform those doing business with it of that fact. In the very nature of things the stamping of the words, “Chickasawba Abstract So Investment Company, Inc., successors to,” before the printed words, “The Terry Abstract Company,” would show to persons receiving the letters that it was the intention of the corporation to carry on its business under .its new name. The use of the words, “successors to,” would notify those receiving letters that the new corporation had purchased the business of the old corporation and would thereafter carry the business on under its new corporate name. On this point Bickner testified that the name was changed because the defendant, E. M. Terry, .had been receiving mail addressed to the corporation under its old corporate name, and thereby interfered with its business. On1 this point, however, Terry denied having, in any manner, interfered with the business of the plaintiff. He admits that, on several occasions, he received letters which were intended for the plaintiff, but said that he delivered them to the' plaintiff. He testified, however, that in no instance did he use the mail of the plaintiff to secure business for himself. ' Be that as it may, the fact remains that the plaintiff changed its name from The Terry Abstract Company to the Chickasawba Abstract So Investment Company, and later to the Chickasawba Abstract Company. There is no similarity whatever between these names, and nothing which would, tend to confuse the minds of those wanting to do business with the plaintiff, and to make them believe' that the Chickasawba Abstract So Investment Company intended to .carry on its business under its old name, The Terry Abstract Company. If such had been its intention, no good reason appears why it should have changed its name at all; or, if it intended that the words, “successors to The Terry Abstract Company,” be a part of its new name, it should have made it a part thereof in its articles of association and had the same certified as its new name under the statute by the Secretary of State, instead of simply saying that it had changed its old name, The Terry Abstract Company, to the Chickas'awba Abstract & Investment Company. The testimony does not show that any confusion resulted, except in a very few instances, and these instances were not numerous enough or sufficiently Continuous as to have warranted the court in granting an injunction in the matter. The result of our views is that the decree of the chancery court will be reversed, and the complaint of the plaintiff dismissed for want of equity.