Rosenthal v. Brasley-Krieger Shoe Co.

PLUMMER, J.

In this action a decree and judgment was entered restraining and prohibiting the appellant from using the name ‘ ‘ Family Shoe Store ’ ’, or any combination or group of words closely resembling the same. The action is based upon the alleged threatened unfair practices on the part of the appellant. From the judgment entered in the action this appeal is prosecuted.

An examination of the record discloses that for many years the plaintiff had been conducting a shoe store and using the trade name of “Family Shoe Store” since the year 1920, down to the date of the trial. At times “The” appears to have preceded the use of the words “Family Shoe Store”, making the trade name read, “The Family Shoe Store”.

The exhibits set forth in the transcript show that in the signs employed by the plaintiff the word “Rosenthal’s” ap- pears at the top of the sign in small letters, and immediately below were the words ‘ ‘ Family Shoe Store ’ ’. In the daytime the word “Rosenthal’s” could be easily seen; at nighttime the words “Family Shoe Store”, being in “Neon”, only were visible.

During the time mentioned “Rosenthal’s Family Shoe Store” was the only business house of that kind -in the county of Kern, and the only one using that name. Prior to the beginning of this action the appellant acquired a business place in Bakersfield in the county of Kern, a short distance from the plaintiff’s place of business, and posted in front of its store prior to opening a sign reading as follows: “Kirby’s Family Shoe Store. Open Here Soon. Watch For It.”

After this sign had been posted by the appellant numerous inquiries were made to the plaintiff as to whether the plaintiff was moving his place of business, or was establishing a branch store. We may here state that the word “The” in front of P Family Shoe Store”, used by the plaintiff, was dropped from the sign as early as 1926, and thereafter appeared only as “Rosenthal’s Family Shoe Store”.

The record also shows that the appellant, when installing merchandise in its store, had printed on its shoe boxes the

[259]

words “Family Shoe Store” underneath the word “Kirby’s”. After the appellant had opened its store it appears that a limited number of customers entered the store under the impression that they were patronizing a store conducted by the plaintiff.