Benioff v. Benioff

NOURSE, J.

Defendants appeal from a judgment enjoining them from engaging in the fur business in the state of California under the name of Hudson Bay Fur Company, or any similar name, claiming that the judgment is erroneous “in so far as it prohibits the defendants from engaging in the fur business in Los Angeles’” under that name. The action is not based on the ground that plaintiffs have any trademark or exclusive right to the name, but is predicated on the common-law right to protection against unfair competition in trade.

[746]

The plaintiffs, who are husband and wife, have, since about June 1, 1915, conducted a fur business in San Francisco under the name of Hudson Bay Fur Company. They at first operated through a corporation and continued, as partners, under the same name after its voluntary dissolution March 15, 1918, the business at all times being under the exclusive management of plaintiff George Benioff. At the time the business was commenced no other person, firm, or corporation was transacting any business in the state of California under the name of Hudson Bay Fur Company, and their right to the use of the name is unquestioned.

The evidence shows, among other things, that from a small retail business in 1915, with its debts exceeding its assets, the Hudson Bay Fur Company developed into an extensive and profitable general wholesale and retail fur business, carrying a stock worth from $110,000 to $125,000 cost price, with the annual sales amounting to from about $300,000 to $400,000. That the main store was maintained in San Francisco, with a branch in Oakland. That the business included

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repairing, making up and handling of furs, tanning and so forth. Anything and everything in the fur line, pertaining to furs”; dealing in raw skins, and buying and selling all kinds- of furs and fur garments. That the business was extensively advertised through the medium of newspapers (chiefly San Francisco and Oakland), circulars and catalogues. That the circulars and catalogues were mailed throughout the state as far south as Bakersfield, but no attempt was made to advertise locally in Los Angeles. That the catalogues solicited a mail order business. That all the garments from their stores, both repaired and new, were labeled with the name of Hudson Bay Fur Company. The evidence further shows that, through their advertising, sales were made to people outside of the state in addition to those within; that within the state sales were made to people both north and south of San Francisco, including Los Angeles and points south thereof; that a portion of this business was sent out on mail orders. Plaintiffs were considering opening a store in Los Angeles and to that end, in January or February, 1921, had their attorney in Los Angeles investigate certain property there for the purpose of leasing. Plaintiff George Benioff and the individual defendants are brothers. Defendants David Benioff and Fred