#### The Citizens’ Wholesale Supply Co. *v.*Downing, d. b. a. Consumers’ Wholesale Supply Co., et al.

*Injunction*— Unfair *competition*— Similarity *of firm names.*

(No. 17581

Decided April 24, 1923.)

Error to the Court of Appeals of Franklin county.

The plaintiff below, the Citizens’ Wholesale Supply Company, brought suit for an injunction against the defendant Wayne Downing, seeking to prevent him from the use of his firm name, the Consumers’ Wholesale Supply Company.

After a full hearing upon the issues joined and the evidence submitted, the common pleas court denied the right to that injunction, upon the ground that the evidence in the case clearly showed not only no intentional deception upon the part of the defendant, but no reasonable probability of the public being in any wise confused or deceived by reason of any similarity in the names or in the methods of using *423them in connection with the business of the respective parties.

The court of common pleas, in its opinion, therefore found as follows:

“Finding that confusion and deception is-not liable to result from any similarity in the names of these parties, I have reached the conclusion that the plaintiff on the. issues made on the pleadings and evidence has no right to the equitable relief demanded, and its petition is accordingly dismissed.”

Thereupon an appeal was taken to the Court of Appeals, where the case was submitted upon the transcript of the testimony below, together with the additional testimony taken in the appellate court.

The following is the finding of the Court of Appeals, as stated in the opinion:

“An examination of the. authorities satisfies us that in the absence of proof of actual fraud or acts amounting to proof of actual unfair dealings that the two names are not so similar as to make out a clear case for an injunction. We think this is especially true when the system or method of doing business is so substantially different as the methods disclosed by the evidence. # * *

“Upon a consideration of the entire record we are of the opinion that the same decree should be rendered in this court as was rendered in the court below.”

Error is now prosecuted to this court to reverse the judgment below.

*Messrs. Williams $ Nash*and *Mr. P. 8. Karshner,*for plaintiff in error.

*424*Messrs. Bogun, Bogan <& Bogan*and *Mr. J. L. Stanton,*for defendants in error.

By the Court.

This ease was admitted into this court in the belief that the question presented was one of law dealing vitally with the subject of unfair trade, which has received most important consideration in modem days, not only in the field of commerce but in the forum of the courts. When the cause was submitted on its merits and the record was more fully examined, it became clearly apparent that the judgment below turned entirely upon the evidence in the case.

Under the evidence, as found by the courts below, there is clearly no intentional deception, and there is nothing in the names themselves that would be reasonably calculated to confuse or deceive the public.

We will not weigh the evidence, and are therefore compelled to adopt the finding in that behalf by the court below.

By reason thereof the judgment of the Court of Appeals is affirmed.

*Judgment affirmed.*

Marshall, 0. J., Wanamaker, Jones, Day and Allen, JJ., concur.