Katschinski v. Keller

NOURSE, J.

Plaintiff and appellant, doing business under the name and style of “Philadelphia Shoe Company,” with its principal place of business in San Francisco, commenced this action to restrain defendants from conducting the same line of business in the city of Fresno under the name of “Philadelphia Shoe Store.” Two causes of action were included in the complaint, the first based upon plaintiff’s exclusive state ownership of the name by virtue of his continuous use thereof since 1881 and his registration of the trade name with the Secretary of State pursuant to section 3197 of the Political Code, and the second based on the common-law right of protection against unfair trade and competition. Judgment was given in favor of defendants, from which plaintiff has appealed on the ground that the evidence does not support the findings made by the trial court.

[407]

The allegations of the first cause of action found to be true by the court are, generally, .that in 1881 plaintiff commenced doing business as a dealer in boots and shoes in the state of California, with his principal place of business in the city and county of San Francisco, under the name of “Philadelphia Shoe Company,” and adopted said name as a trade name in his said business; that ever since said date he has conducted and is now conducting his said business under said trade name; that on the twelfth day of July, 1900, and before the filing of said trade name by any other person, plaintiff filed with the Secretary of State his claim to said name pursuant to section 3197 of the Political Code; that the name “Philadelphia” as adopted and used by plaintiff in connection with said business was and is a purely arbitrary and fanciful designation for the purpose of identifying and distinguishing the business of plaintiff, and has not been used for the purpose of indicating a particular locality as in any way connected with the business or the place where the business is carried on.

The findings of the trial court as to the first cause of action adverse to plaintiff are that the defendants have never at any time done business, nor are they now doing business, in the name and style of “Philadelphia Shoe Store,” and that plaintiff has never demanded of defendants that they desist from using the name “Philadelphia Shoe Store.” That these findings are not supported by the evidence is too plain to be questioned, and this, apparently, is conceded by counsel for respondents, as they have made no attempt in their brief to sustain the findings. At the trial the defendants offered no evidence on any branch of the case. The evidence produced by plaintiff showed conclusively that defendants for a long time prior to the time of the commencement of the action had been doing business in the city of Fresno under the name of “Philadelphia Shoe Store”; that their checks were signed in that manner; that their stationery contained the same designation, and it is argued that their certificate of copartnership under which they were doing business carried the name “Philadelphia Shoe Store.” There was not a particle of evidence controverting this showing, and, in fact, the court found in relation to the second cause of action “that defendants are copartners doing business in the city of Fresno, county of Fresno, state of California, under