Grant v. California Bench Co.

McCOMB, J.

From a judgment in favor of defendants predicated upon the sustaining of their demurrer without leave to amend to plaintiffs’ first amended complaint in an action for an injunction, accounting and damages for unfair competition, plaintiffs appeal.

It was alleged in the complaint as amended, that plaintiff Clyde Grant had established an advertising business; that in connection with the operation of said business he had spent money, time, work and labor in the exploitation and use of certain benches denominated “courtesy benches”; that such benches were of a distinct combination of features, design, size, shape, color, arrangement and structural combination; that plaintiff Grant had granted a license to his coplaintiff Dewey Robertson to use in the operation of his advertising business a “courtesy bench” similar in type to that used by plaintiff Grant. It was further alleged that defendants, to plaintiffs' damage, were circularizing the public offering to provide bench advertising, and that such literature contained “a photograph and picture of a courtesy bench of the exact distinctive design, style, character of description of courtesy benches of said plaintiffs as the same herein are described and in imitation of the distinct combination of features of design, size, shape, color, arrangement and structural combination of. the courtesy benches so used and being used by the plaintiffs.”

A general demurrer on the ground that the complaint as amended did not state a cause of action was sustained without leave to amend.

This is the sole question presented for our determination:

Did the complaint as amended state a cause of action?

This question must be answered in the affirmative and is governed by these rules:

d) Unfair competition is a question of fact and no inflexible rule can be stated as to what conduct will constitute unfair competition. The universal test is whether the public

[708]

is likely to be deceived.

(Pohl

v.

Anderson,