W. B. Manufacturing Co. v. Rubenstein

Rugg, C. J. This is a suit in equity wherein the plaintiff a Massachusetts corporation seeks to restrain the defendants from conducting business under the firm style of R. B. Manufacturing Company. The case was heard upon oral evidence by a judge of the Superior Court who made this finding of fact: “The plaintiff’s corporate name is ‘The W. B. Manufacturing Company,’ and its place of business is 65 Essex Street, Boston. Before January 1, 1917, the defendants had been doing business in Fall River "for many years under the name of Rubenstein Brothers, and their business was not a competing business. January 1,1917, the defendants moved to 65 Essex Street, Boston, dropped the [219] name 'Rubenstein Brothers/ assumed the name 'R. B. Manufacturing Company/ and entered into active competition with the plaintiff in its own line of business. It has not been contended by either party that the object of the defendants in dropping the name by which they had been known to the trade for many years was to drop the reputation which went with it. The more probable explanation of their conduct is that they wished to get the benefit of the plaintiff’s reputation.” It is the well settled rule in equity that, while it is the duty of this cotut on an appeal with report of the evidence to examine the evidence with care and to reach its own conclusion as to the facts, yet a finding made by the trial court after a hearing in which witnesses have been called in person to testify before him will not be reversed unless plainly wrong. Lindsey v. Bird, 193 Mass. 200. Careful consideration of this record convinces us that the finding was right. It must stand. It is urged in behalf of the defendants that they have a legal right to use the letters R. B. on the footing that it is their name because an abbreviation for Rubenstein Brothers. It is enough to say that this contention has no foundation either in fact or in law. Initials alone do not constitute the name. Description or abbreviation is not the equivalent of a name. The distinctive characterization in words by which one is known and distinguished from others is the name of a person. Conners v. Lowell, 209 Mass. 111, 118. The right of one to use his own name in business even when the same as or like that of another has recently been considered in Burns v. William J. Burns International Detective Agency, 235 Mass. 553, where the authorities are collected." Those principles have no bearing upon the case at bar because two or more detached and separated letters of the alphabet do not constitute a name. Cases like Commonwealth v. Gleason, 110 Mass. 66, and Carleton v. Rugg, 149 Mass. 550, have no relevancy to the facts disclosed on this record. The defendants must stand on the ground that they have no natural or superior right to the use of the designation or identifying letters selected by them for their business. The single question in this connection is whether the trade designation adopted by them is sufficiently similar to that of the plaintiff to be likely to confuse or mislead those using ordinary discrimination. [220] There was ample evidence that the plaintiff had established a trade reputation in connection with its name. C. A. Briggs Co. v. National Wafer Co. 215 Mass. 100. While a court of equity will not interfere to protect one against harm arising from failure on the part of purchasers to exercise ordinary attention when thereby they would be enabled to notice the difference between the two names or marks, it will not permit one to assume a trade characterization so closely like that of another as to be likely to mislead the public. McLean v. Fleming, 96 U..S. 245, 255. It seems plain, both from the nature of the designation adopted by the defendants and from the evidence specific to the effect that mistakes of identity had occurred among customers of the plaintiff, that the latter’s right to be secured from unfair competition was infringed. Reading Stove Works v. S. M. Howes Co. 201 Mass. 437. The case was referred to a master to ascertain damages and profits. He found that profits had been made but found no damages. In this there was no error of law. Forster Manuf. Co. v. Cutter-Tower Co. 215 Mass. 136. The master found in substance that the defendants had not furnished all the information within their control as to costs of goods and profits made by them. There was no error in the admission of evidence by the master. Whether a witness was qualified to testify as an expert was under the circumstances within the discretion of the master. Westinghouse Electric & Manuf. Co. v. Wagner Electric & Manuf. Co. 225 U. S. 604. The rulings of the master respecting rules for computation of profits and losses were in accordance with the principles laid down in Nelson v. J. H. Winchell & Co. 203 Mass. 75, 91. The defendants were not entitled as of right under the circumstances to show sales made by them to their old customers and establish thereby what they might have made if they had conducted their business without attempting to appropriate the benefit of the name of the plaintiff. Saxlehner v. Eisner & Mendelson Co. 138 Fed. Rep. 22. W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co. 100 Maine, 461, 479. Whether the master should reopen the case for further hearing rested in his discretion under the circumstances. New York Bank Note Co. v. Kidder Press Manuf. Co. 192 Mass. 391, 405. [221] Clearly whether the master’s report should be recommitted was within the discretion of the court. Decree affirmed with costs.