Libby v. Libby

De Courcy, J. This bill in equity was brought to restrain alleged unfair competition in trade. The case is here on the plaintiff’s appeals from interlocutory decrees overruling its exceptions to the master’s report, confirming the report, and denying a motion for an injunction; and from the final decree dismissing the bill. Up to 1920 the defendant, while carrying on business alone, did so under his name “Samuel Lipsky” or “Lipsky & Company.” On his application to the Probate Court duly made and published under It. L. c. 154, § 12, his name was changed to Samuel Libby in February, 1920; and in May he changed the name under which he was doing business to “Libby & Libby Co. of Massachusetts.” The plaintiff, in support of its motion for an injunction, relies upon the numerous cases where courts have enjoined a competitor from fraudulently putting on the semblance of somebody else, for the purpose of passing off his goods as the goods of that other person. Samuels v. Spitzer, 177 Mass. 226. Poiret v. Jules Poiret Ltd. & A. F. Nash, 37 R. P. C. 177. Wotherspoon v. Currie, L. R. 5 H. L. 508. Valentine Meat Juice Co. v. Valentine Extract Co. Ltd. 17 R. P. C. 673. Chas. S. Higgins Co. v. Higgins Soap — 243 — Co. 144 N. Y. 462. Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co. 208 U. S. 554. The adoption by the defendant of “Libby & Libby Co. of Massachusetts” rather than “Samuel Libby” as the style under which to conduct his business, standing alone might well raise a suspicion that his real intent was to infringe on the plaintiff’s proprietary rights. But the record discloses much more. The master, who heard the witnesses, and whose findings of fact we must accept unless they are plainly wrong, specifically finds: “The defendant believed that it would help his business if he adopted an American name, and he chose ‘Libby’ partly because it closely resembled ‘Lipsky’ and partly because it was a name carrying prestige in the meat business. I do not find, however, that he chose the name ‘Libby’ with intent to obtain trade by leading the public to believe that, when dealing with him, they were dealing with the plaintiff, or that he adopted the designation of ‘Libby & Libby Co. of Massachusetts’ with that object. I am disposed to accept the defendant’s explanation that he wished to do business under the name of ‘Libby & Libby Co.’ in order to give the impression that the business was growing and that he added the words ‘of Massachusetts’ so as to meet a possible contention that he was holding out his business as that of the plaintiff.” He also found: “Shortly after the defendant began to do business under the name of ‘Libby & Libby Co. of Massachusetts’ the plaintiff learned of the fact and began an investigation into the character of the defendant’s business. So far as appears, however, this investigation did not disclose that the defendant was getting any trade away from the plaintiff through the use of the name or was in any other way causing appreciable damage to the plaintiff. Neither is it shown that the defendant has in any way attempted to pass his business off as or for the business of the plaintiff, except as the use of the name ‘Libby & Libby Co. of Massachusetts’ may be regarded as such an attempt; the defendant has never used in his business the name ‘Libby’ alone or the name ‘McNeill’ either alone or in combination with ‘Libby.’” It being established by the master’s report that the defendant’s conduct was not actuated by a fraudulent intent to deceive, there occurs the further question, whether a manifest liability to deception arises from the mere similarity between the plaintiff’s — 244 — name and that employed in business by the defendant. Has the name adopted by the defendant misled, or is it likely to mislead, “those with whom the parties deal and among whom they look for business?” Hub Dress Manuf. Co. v. Rottenberg, 237 Mass. 281, 284. The answer depends upon the facts as found by the master. The defendant does not deal in canned or cured meats, fruits, evaporated milk, jellies or other articles, which constitute so large a portion of the plaintiff’s business. The only business in which he could come in conflict with the plaintiff is in the sale of fresh meat at wholesale to other dealers in the market district. He does no retail business. The plaintiff corporation has had no place of business in the market district since 1915. Its cut meats are sold mostly through a firm of commission merchants, who carry a stock of the plaintiff’s meats and sell from this stock in their own name. No distinguishing mark has been placed upon fresh meats by either of the parties; and “it would be difficult, if not impossible, even for one familiar with the business, to determine by examining any given piece of fresh meat belonging to the general class dealt in by both parties whether it had been sold by the plaintiff, by the defendant, or by some third person.” The master finds that not only was there no evidence of any purchaser’s mistaking the defendant’s fresh meats for those of the plaintiff, but that “there is practically no chance that any one in the trade will buy of the defendant in the belief that he is dealing with the plaintiff, or that the sale of the plaintiff’s meats at retail will be interfered with by the defendant’s use of these names.” Without reciting further findings as to the failure to show any damage caused by the defendant’s use of the name “Libby & Libby Co. of Massachusetts,” as he now uses it, we are of opinion that the plaintiff is not entitled to the injunction prayed for, on the facts as found by the master. Burns v. William J. Burns International Detective Agency, Inc. 235 Mass. 553. Hub Dress Manuf. Co. v. Rottenberg, supra. The plaintiff’s exceptions to the master’s report are largely disposed of by what has been said, and need not be further discussed. It may be added, however, that the findings are based on and confined to the business of the defendant as heretofore conducted, and as interpreted by the master. We are not now concerned with possible future conduct which might give to the — 245 — defendant’s business methods an aspect materially different from that apparent from the master’s report. On the record now presented we find no error in the interlocutory decrees. The final decree, dismissing the bill without costs, must be affirmed. Ordered accordingly.