The record-union., 1893-12-01
TRADE MARK RULING.
Trespass Upon Business Rights and
Titles Forbidden.
An Interesting Decision, in Which is
Involved a New and Impor-
tant Issue.

Recently the Superior Court of Sacra
mento. Judge Johnson presiding, decided
the case of Weinstock, Lubin IL Co. VS..
II. Marks, for plaintit1. The decision in
volved the always interesting question of
trade mark and business title and in
tringement upon them. 1t also involved
a wholly new phase of these questions,
due to copying in architecture in an ad-
joining structure the design of the build
ing of a business competitor.
These questions being Of such general
interest to business men, that just what
the court found and held is presented in
the following syllabus Of the extended
opinion rendered in the case by the court.
The language used is succinct and COM
prehenslve synopsis of the several find
ings, without ything being added to or
taken theretrOm.
The court finds that the plaintiffs have
and conduct business house in Sacra-
mento. That defendant conducts a busi-
ness house next adjoining the store of
plaintiffs. Both deal in mems and boys
clothing. The plaintiffs have erected
building of peculiar architectural design
in which their business is conducted, no
other building in Sacramento at all re-
sembling II, especially as TO the lower
story.
Defendant thereafter modelled his store
front or the lower story to an exact
copy Of the building OF the plaintiffs, and
the two buildings adjoin.
Plaintiffs from the outset adopted the
title Mechanics Store" for their name
and business Title. Later they used the
corporation firm name also, and both
titles are in use. Defendant, after adop-
ton OF such title by plaintiffs, adopted
and used the title Mechanical Store" tor
his place OF business, and this was done
for some years prior to the erection OF the
buildings now in use by either plaintiffs
or defendant.
The court is unable to say what was the
intention of defendant at the outset IN
adopting q title similar in sound and
form to that OF plaintiffs. 1t might have
been for the purpose Of protiting upon
the result of the similarity of names, or
il might have been to attract the attention
OF mechanics and laboring people. But
the court finds that when, in 1892, defend
ant copied in the architecture OF his build
ing that of the plaintiffs, that he had
some design TO appropriate some Of the
trade which was the result of plaintiffs
eXertiOns and business methOuS.
The court finds that after defendant so
built and conducted business within such
building, which by its lower story re-
sembles a continuous frontage Of plain
ifs building, customers OF plaintiffs
were misled by the similarity of the two
structures and went into defendants
store as a result. The court finds that de-
fendaut had no sign sufficiently promi-
nent in his store to indicate that it was
his and not one of plaintiffs store rooms,
and the court finds that in fact customers
were led into mistakes by the absence of
such prominent sign
Some customers who came into de-
fendant's store mistaking it for plaintiffs,
asked if they were in the latter's store,
and the replies given misled them and
tended 10 make them believe they Wele
in plaintiffs store, and the answers given
TO them were misleading, aud not fair
dealing, and not justice to the customer
or the plaintiffs.
Further, the court finds this intention
to mislead to exist, because it was proved
that when customers so misled expressed
the belief that the methods as to prices of
goods adopted by defendant were not the
methods well known to have been
adopted by the plaintiffs as to prices, de-
tendant or his clerks gave replies tending
to quiet such suspicion or doubt, and
this the court finds was deceit intended
to convince such customers that they
were trading in plaintiffs store, when, in
fact, they were trading in defendants
store.
SO the court finds that the words ME
chanical Store" and Mechanics Store"
and "Weinstock u Lubin" were used by
defendant to deceive customers and lead
them to believe they were trading with or
in the store Of plaintiffs. The court finds
that plaintiffs had established a trade on
the basis fixity of prices, the same
price to all for the same article, and are
entitled to be protected in the reputation
builded upon that system; that defendant
in using plaintiffs title was intending to
gain by reason Of the reputation of plaint-
IFS gained under their title, and that this
was injury to plaintiffs.
Therefore the defendant should be re-
strained in the future from representing
himself or his business as of the plaint-
ifs firm or business, and from using the
title Mechanical Store'' i'll the connec-
ton in which he has been using it. De-
fendant should place sign in his store,
visible at all times in business hours to
all comers, to designate the store as
that of II. Marks. Also, he should place
a sign on the outside Of his building to
show that his store is not the store of
plaintitfs', and the prayer Of plaintiffs in
that respect is granted.
The court finds that TO a certain extent
Mr.. Marks thought he had right to use
the words Mechanical Store" as a title.
that it was a device or trick he had a
right to employ, but such use, in connec-
ton with his act regarding the business
front OF his store, brings him within the
law, and he must be restrained as prayed
for.
But the court finds that it cannot come
to any conclusion in dollars and cents as
to actual damage done, and therefore al
lows nominal damages, in the sum of one
dollar.