The record-union., 1895-12-24
MARKS MUST PUT UP THE SIGNS.
But He Need Not Change the Front
of His Store.
Such is Judge Johnson's Ruling on the
Motion of Wefnstock, Lubin
d Company.

johnson of arguments on the motion
of Weinstock. Lubin & Co., in their
case against Fl. Marks, to compel the
latter to so change the architecture
of the front of his store, adjoining
that of the plaintiffs, that it Will no
longer be identical with that OF their
establishment This, it was claimed
was authorized by the recent decision
OF the Supreme Court affirming the
Judgment of the Superior Court.
The plaintiffs were represented In
court by Hiram w. and Albert M
johnson, and the defendant by A. L.
Hart and S. s. Holl. Counsel, in their
arguments, traversed all the features
of the case, from beginning to end,
plaintiffs counsel contending that the
court would be fully justined in grant
ing the motion-that in fact 1t was de-
manded by all considerations OF justice
to the plaintiffs Counsel for Marks
were equally as positive that the de-
fendant had as good a right to con-
struct and maintain his building in its
present style of architecture as had the
plaintiffs theirs.
Judge Johnson, in ruling on the mo-
ton, said he could not find that the
decision of the Supreme Court author-
lied him to go to the extremity demand
ed by the plaintiffs, but he was very
firm in his conviction that the DEFEND
ant, Marks, should be required to at
once proceed to carry out the direction
of the court to clearly distinguish his
store from that of Messrs. Weinstock,
Lubin & Co.
ac-fo n
witnesses had testified to having been
deceived into patronizing Marks When
they supposed they were purchasing
goods of Weinstock, Lubin & Co., ana
said that the former must cease from
misleading the public in that particular
He would so modify the judgment as 10
require Marks to place over each OF the
archways to the entrance of his store
signs that would clearly show that MS
store is distinct from that of his neigh
bors.
He would also require that sign be
so placed on the partition wall that
projects beyond the arcade that per-
sons going down K street toward
Fourth would be able to distinguish
Marks store from that of Weinstock,
Lubfn & Co. Prominent signs must
likewise be displayed inside Marks
store, showing such distinction, and the
name Mechanical Store" must not
longer be used, as it is an infringement
or the plaintiffs right to the use OF
Mechanics Store
Hiram Johnson asked the court also
to include in the order that the defend
ant must not use the term 'Mechani-
caT' on his wrapping paper, nor on
packages leaving his store.
This the court did not deem neces-
sary. inasmuch as he believed that was
fully covered in his original decision.
The defendant was, however, to take
ccgnizance of that fact and govern
himself accordingly.
Judge Johnson then Informed counsel
for Marks that he would accompany
them to the sign-painter's shop and
designate what he regarded as the
proper size and style of the signs to be
placed where indicated.
When the court asked counsel for
the plaintiffs to prepare an order in
accordance with the views Of the court
they asked to be excused from that
duty. as it might be determined by
final Judge Holl then consented to
prepare the order.
THE SUPREME COURTS DECISION
IN THE CASE.
Following is the substance of the de-
cision of the Supreme Court, under
which the plaintiffs made their motion
for an order requiring Marks to alter
the front of his building, constructed
in imitation of theirs:
Plaintiff is a corporation carrying on
a large clothing and dry goods business
in the city of Sacramento. Defendant
is also a dealer in clothing of the same
genral character, and is carrying on
business in a building adjoining plain
tiffs' place of business. The present ac-
ton is one of injunction. and by its de-
cree, among other things, the court or
dered defendant to refrain from further
use Of the name Mechanical Store" as
the designation of his place Of business,
and further decreed that defendant
maintain and place in a conspicuous
part Of his store, and also in conspic-
uous place on the outside or front
thereof, a sign showing the proprietor
ship of his store in letters sufficiently
large to be plainly observable by pas
sersby and customers entering therein.
Defendant appeals from the foregoing
portions of the judgment.
We first turn our attention to that
portion of the judgment restraining de-
fendant from further use of the words
Mechanical Store" as a designation of
his place of business.
Il quite agree that they (the plain
tiffs) have no property right in the
name, but the principle upon which the
cases on this subject proceed is not
that there is property in the word, but
it is fraud on a person who has estab-
lished a trade, and carried on under a
given name, that some other person
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 in the belief that they
We're dealing with a person who has
given reputation to the name"
We think the defendant should be re-
strained from the use OF the words
Mechanical Store" The court has de-
clared the fact to be, and it is not chal-
lenged by defendant, that these words
were used as a designation of his
store for the purpose of deceiving the
public, and especially plaintiffs Gus
toners. and thereby securing the ad-
vantage and benefits of the good will
of the plaintiffs business. To say that
such conduct upon the part of the de-
fendant is unfair business competi-
tion is to state the fact in the mlldest
terms.
In this case the trial court determined
that there was a sufficient similarity in
the names to deceive the pnblic. that
the defendant adopted the name for the
purpose of deceiving the public and se-