Zweck v. Aberdeen Laundry & Dry Cleaning Co.

GATES, J.

Action for damages for unfair competition and for an injunction. Trial to the court without a jury. From' a judgment for plaintiff and from an order denying new trial defendants appeal.

. This action was begun in 19119. For-about 15 years prior thereto plaintiff and his predecessors conducted a dry cleaning and dyeing business in the city of Aberdeen under the trade-name “Aberdeen Dry Cleaning Works.” From 1901 until 1916 two of defendants conducted a laundry business in Aberdeen under the name “Aberdeen Steam Laundry.” In 19x1 the said two defendants purchased a business known as the “Sanitary Dry Cleaning & Dye Works” then doing business in Aberdeen. Afterwards another of defendants purchased an interest in the latter business, and the same was conducted by the defendants Tiffany under said name “Sanitary Dry Cleaning & Dye Works” until August, 1916, when the defendant corporation, “Aberdeen Laundry & Dry Cleaning Company,” was incorporated and both businesses of defendants were consolidated under said corporate name and they were thereafterwards so conducted.

[1] Appellants complain of the insufficiency of the evidence to sustain the findings. From ample competent evidence the trial court found facts showing that confusion and loss resulted to respondent’s business from and after the adoption and use by defendants of their present trade-name. From' ample competent evidence the trial court also found:

“The court further finds from the evidence that defendants did fraudulently appropriate to their use and did operate their business under the name ‘Aberdeen Laundry & Dry Cleaning Company,’ and did, after knowledge of the confusion created thereby and the loss and injury sustained by the plaintiff, con *179 tinue to operate its said business under said corporate name, whereby the plaintiff suffered irreparable loss and injury.”

From the findings of fact the trial court entered the following conclusion of law:

“The court finds, as a conclusion of law, that the plaintiff is entitled to a judgment forever enjoining and restraining the defendants, their agents and servants, from doing business under the corporate name "Aberdeen Laundry & 'Dry Cleaning Company,’ and from advertising or soliciting trade thereunder and from using the trade-name of the plaintiff or the names ‘Aberdeen Dry Cleaning Co.,’ ‘Aberdeen Dry Cleaning Company,’ or ‘Aberdeen Dry Cleaners,’ and from' receiving any business thereunder shipped or transmitted or otherwise forwarded to the plaintiff under such names, and from pretending to be the plaintiff or -his representatives.”

[2] Appellants contend that this action cannot be maintained because of section 490, 'Rev. Code 1919, and because of the decision in Bidwell v. Collins. 39 S. D. 395, 164 N. W. 969 . In construing that section of the. Code (then section 892, Rev. Civ. Code 1903) in that case it was especially pointed out that the question of unfair competition was not involved. Respondent asserts this legal proposition:

“The first dealer in a particular business to adopt and use and give value to a trade-name consisting ■ of geographical, generic, or descriptive terms, and therefore not subject to exclusive appropriation as a trade-name will nevertheless be entitled to have the business which he has built up under such name protected against unfair competition on the part of subsequent rival traders, and equity may enjoin the use of such trade-names or similar names by subsequent rival traders where necessary to protect the business built up by the first dealer.”

We think this proposition is sound in law, and that the facts of this case justify its application. 38 Cyc. 803; 26 R. C. L-889; Nims, Unfair Competition and Trade-Marks, pp. 190-232.

[3] Finally appellants urge that respondent’s laches in bringing suit is a bar to the action. ■ The trial court did not award money damages to respondent. In suits based on unfair competition it is well settled that mere laches in the bringing of suit is not a bar to the injunctional features of a cause. 38 Cyc. *180 881. Moreover, one of the acts of appellants tending strongly to show a lack of good faith on their part occurred only a short time before this action was 'brought.

The judgment and order appealed from are affirmed.