Milani v. Smith

GOODELL, J. The defendant appeals from an order granting a preliminary injunction and from a judgment and decree containing a permanent injunction in a suit brought to stop unfair competition.

The plaintiff, Joe Milani, entered the taxicab business in San Rafael in 1925. In 1933, he took over a business in that city known as Yellow Cab Company. Later on his son Frank joined him as a partner. They operate six cabs, five of which are painted yellow, with black fenders, and lettered “Yellow Cab.” Their office is painted yellow and lettered “Yellow Cab.” The use of that name in connection with their business dates back to 1935; their cabs have been yellow since 1942, and the drivers have worn' yellow caps since 1943.

The defendant entered the taxicab business in San Rafael in 1942, first calling it Blue Line, next Checker Blue Line, then Checker Cab Company, and finally Yellow Checker Cab Company. His cabs at first were painted in colors other than yellow, but in August, 1946, he had all six of them painted a shade of yellow approximately the same as plaintiffs’ fleet, but with red fenders. At the same time he changed the color of his drivers’ caps from black to yellow. The defendant’s office, painted yellow and red and.lettered “Yellow Checker Cab,” is about 75 feet from plaintiffs’ place on the same street.

After two hearings the preliminary injunction was issued enjoining defendant, “from using the word ‘Yellow,’ orally, in writing, or otherwise, and in any manner whatsoever to identify the operation of his taxicab business ...” and “from using the color yellow on his taxicabs, offices and stands, drivers caps and uniforms, signs, and all other equipment, used in his taxicab business in . . . San Rafael ...”

At the trial all evidence admitted at the earlier hearings went in by stipulation and immediately after submission the court ordered judgment for plaintiff for one dollar damages and a permanent injunction. Findings were filed and a decree entered, enjoining the defendant “from using the word ‘yellow’ orally, in writing, in advertising, or otherwise, or in any manner whatsoever to identify the operation of any taxi[165]cab business owned or operated ... by the defendant . . .” and “from using the color ‘yellow’ on defendant’s taxicabs, offices and stands, driver’s caps and uniforms, signs, and all other equipment used ... in any taxicab business owned or operated ... by defendant . . . in . . . San Eafael ... in such a manner as may be calculated or liable to deceive the public generally, or to lead members thereof, while exercising ordinary care and prudence in selecting a taxicab, to believe that the taxicab operated by the defendant is a taxicab belonging to or operated by the plaintiffs, ...”