Shores v. Chip Steak Co.

[628]

ASHBURN, J. pro tem.

*

This action is between the same parties and was filed at the same time as the one involved in Civil No. 20484,

ante,

p. 620 [279 P.2d 591] this day decided.. The appeal is from an order denying motion for change of venue from Los Angeles County to Alameda County and has been submitted pursuant to rule 17(b).

The two corporations, Chip Steak Company and Chip Steak Company Southern California are the only defendants. The complaint is in two counts. Plaintiff repeats the allegations of the other action to the effect that he, conducting business under the fictitious name Chip Steak Company, has been and is engaged in preparing, selling and distributing “thin sliced fresh beef, known in the trade and designated by him as ‘chip steaks,’ ”—this in Los Angeles County and elsewhere; that defendants are and have been jointly engaged in like business of preparing and selling in Los Angeles County “thin sliced fresh beef, known to the trade in said County as ‘chip steaks. ’ ” The first count then adds allegations intended to state a cause of action for wrongful disparagement of his goods, or trade libel. It is averred that plaintiff’s chip steak were being sold in San Joaquin County by Gerry Gott Company and by plaintiff himself in Los Angeles County; that defendants falsely and maliciously published in the Stockton Record, “a newspaper that was and is circulated in the Counties of San Joaquin and Los Angeles,” an advertisement stating in substance that plaintiff’s steaks were in counterfeit packages which were imitations of defendants’ packages, that plaintiff’s product was not “quality” food, or prepared or packaged by modern, safe or sanitary methods, that plaintiff had no right to sell chip steaks in San Joaquin or Los Angeles County; that all these statements in the advertisement were untrue; that by final decree of the United States District Court “all pertinent claims of U. S. Patent No. 2,052,221,” under which both plaintiff and one defendant had been licensed, were declared invalid; that prospective purchasers of plaintiff’s meats were misled and so bought from defendants, all to plaintiff’s damage. The prayer sought damages, an accounting and an injunction.

The second count describes the labels used by plaintiff and defendants, respectively, on their meat packages, alleges similarity calculated to deceive the public, use of said misleading label by defendants in Los Angeles County, to plaintiff’s