Morvay v. Fondren

YORK, P. J. The facts which form the background of the instant litigation are briefly as follows:

On or about May 1, 1939, respondent Groves and his brother received from the U. S. Patent office a trade mark authorizing them to use for a period of twenty years the name “Granitize.” On May 24, 1940 the said Groves brothers, as owners of the trade mark and of a secret formula for the manufacture of an automobile polish, entered into a written contract with plaintiff by the terms of which the latter claims he was given the right to be the exclusive distributor of Granitize in the United States for a term of ten years. In an action thereafter instituted in- the Superior Court of Los Angeles County (462547) by the plaintiff, he recovered judgment against the Groves brothers and others for a stated sum of money, as well as an injunction restraining defendants therein from selling Granitize to any person other than said plaintiff. Under an execution issuing out of said action all the right, title and interest of said Groves brothers in the contract of May 24, 1940 was sold to plaintiff Morvay on December 23, 1941, and on August 10, 1942, under an execution sale held by the sheriff of the City and County of San Francisco, all the right, title and interest of said Groves brothers in and to a secret formula for the manufacture of Granitize, an automobile polish, was sold at public sale to said plaintiff Morvay.

Thereafter in a series of litigation, findings and judgment were entered in the consolidated cases numbered 465931, 470430 and 474646 in favor of plaintiff Morvay, to the effect that said Morvay “is entitled to the use of the name ‘Granitize’ for a period of 20 years and to manufacture the same, through and by virtue of the purchase at a sheriff’s execution sale of all of the right, title and interest of Carl P. Groves and Harold L. Groves in and to that said con[716]tract dated May 24, 1940 . . . that (Plaintiff) is the owner of the secret formula for the manufacture of ‘Granitize’ through and by virtue of his purchase at a sheriff’s execution sale of said secret formula.”

By the instant action, plaintiff seeks to enjoin defendant Carl P. Groves, individually, and Pauline Fondren, C. H. Fondren, doing business as Fondren Dust Cloth and Wiping Rag Company, from using the name Granitize and from selling any - products manufactured thereunder upon the ground of unfair competition, and also seeks an accounting from defendants for each and every article sold by them under the name of Granitize. Defendant Groves filed his answer herein alleging a present ownership in the name Granitize, and the right to manufacture, sell and distribute automobile polish under such name, and also set up as a bar to the instant action, the judgment rendered in the consolidated cases heretofore mentioned, which said defendant alleges “involved the same issues as are alleged in the Complaint herein. ’ ’ Said defendant Groves also filed a cross-complaint in which he prayed for $10,000 damages against plaintiff for the latter’s interference with the right and ownership of said defendant in the name Granitize.