Mills v. San Diego Conservatory of Music

THOMAS, J.

This is an action for an injunction against the defendants, praying that the latter be enjoined from using the name “San Diego Conservatory of Music,” and from conducting business under that name “or using the same in any manner whatsoever,” asking for damages and for general relief. The relief is sought on the ground of unfair dealing on the part of the defendants.

The complaint, in apt and proper allegations, sets forth the acts complained of and because of which plaintiff seeks relief. A general demurrer was interposed to the complaint, and was by the court overruled. Defendants, by their answer, -deny practically all the material allegations of the complaint, admitting, however, that defendants other than the corporation organized the defendant corporation, adopting said name therefor “for the purpose of engaging in the same character and line of business claimed to be carried on by plaintiff herein,” the location of their business as alleged by plaintiff, and the publishing of certain advertisements; averring that only for the injunctional order of the court

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they would have continued to carry on such business. The court found for the plaintiff on all the issues, and judgment was entered accordingly. There was a motion for new trial, which was denied. ■ The appeal is from the judgment.

We have read the entire record. From the record it appears that the plaintiff, Professor Chesley Mills, during the year 1915 established a school devoted to the art of music in all its branches, including instruction in the playing of the piano, organ, violin, flute, cornet, mandolin, ukulele, and other orchestral instruments, together with voice culture, platform art, and dramatic training in general, and for the operation and management of a conservatory of music for such instruction and teaching, and the holding of public and private musicals and entertainments incident thereto, as well as the employment of teachers necessary to conduct and carry on such business; that at the time said business was so established the plaintiff adopted the name of “San Diego Conservatory of Music,” under which name, since the establishment of said business as aforesaid, he has carried on and conducted the same at 1630 Fifth Street, in the city of San Diego; and that under said name plaintiff built up a large business, widely and favorably known, as. well as a valuable reputation, etc. That in September, 1917, the defendants, other than the corporation, organized the defendant corporation, under the laws of this state, under the identical name adopted by plaintiff at the time and place aforesaid, and established the office of said corporation and studio at No. 1434 Fifth Street, in San Diego, “within eight hundred feet of plaintiff’s said place of business, on the same side of the street,” from which place and under which name defendants caused certain advertisements to be published; and that such business was so transacted by defendants from that time until restrained from so doing by the court. It is further alleged in the complaint that all this was done “with the intent and for the purpose of defrauding plaintiff and appropriating for their own use and benefit the goodwill of plaintiff’s business and deluding and deceiving plaintiff’s customers and the public in general into the belief that the ■business of plaintiff conducted at the aforesaid place was being conducted by defendants, . . . and that the same has actually misled many of them to patronize defendants in the