Physicians Electric Service Corp. v. Adams

DRAPEAU, J. pro tem.

Physician’s Electric Service Corporation, a California corporation, was granted an injunction forbidding a copartnership to use the fictitious name Physician’s Electronic Service. Testimony before the trial court shows that the plaintiff has used its name, either as a fictitious name or as a corporation since 1928. The business consists in selling to physicians, and servicing, electrically operated

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machines used in the treatment of diseases, such as lamps for heating purposes, and machines using tubes to change electric energy into short wave radio impulses. The defendants started their business and adopted their name in 1945.

The words “electric” and “electronic” are not synonymous. Such machines as use tubes are known as radionie machines. But both types of machines use electric energy derived either from plugging into public utilities electrical circuits or from electric energy storage batteries.

The principal business of both plaintiff and defendants consists of the servicing of these machines. Defendants contend that they service only the types using tubes, and are therefore strictly radionie, and that their name as such does not infringe upon business rights of plaintiff.

The rule in California is well settled. In the early case of

Weinstock, Lubin & Co.

v.

Marks

(1895), 109 Cal. 529, 536 [42 P. 142, 50 Am.St.Rep. 57, 30 L.R.A. 182], it is stated : “. . . the principle upon which the cases on this subject proceed is not that there is property in the word, but that it is fraud on a person who has established a trade and carried it 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 are dealing with the person who has given a reputation to the name.”

In

Rosenthal

v.

Brasley etc. Co.