Exhibitors Herald and Moving Picture World (Oct-Dec 1928)

124 BETTER THEATRES SECTION OF Your October 27, 1928 TRADE NAME Is Invaluable to Your Business A REVIEW of the records of recent higher court litigations disclose that frequently the owners of new theatres have adopted names similar to the names of established theatres. It is certain that copying of a trade name, purposely or unintentionally, results in expensive and prolonged litigation with the final termination of the controversy being that the copied or imitated name must be abandoned, and payment of heavy damages may be imposed by the court upon the infringer. Unquestionably, many owners have expended considerable time, labor and money in establishing a prosperous theatre business under a distinctive name, only to have a competitor adopt a name so similar that the public is misled by announcements and advertisements. Therefore, the purpose of this article is to thoroughly and practically review the leading higher court decisions involving infringement of theatre trade names. Numerous citations of important parts of the court opinions will be given verbatim to substantiate various statements of the law. * * * Distinction Between Trade Marks and Trade Names Generally speaking, names used to indicate theatre businesses are legally known as "trade names," and are quite different from "trade marks." Trade marks relate specifically to the names or marks of salable merchandise and may be registered in the United States patent office. Trade names, as applied to businesses, are not registerable, except under certain state regulations and statutes. However, the owner of an infringed trade name may sue the infringer on the grounds of unfair competition, irrespective whether he has registered the name under a state law. For instance, in explaining this phase of the law a recent higher court said : "Unfair competition is distinguishable from the infringement of a trade mark, in that it does not necessarily involve the question of the exclosive right of another to the use of the name, symbols, or device copied or imitated. A word may be purely generic or descriptive, and so not cappble of becoming an arbitrary trade mark, and yet there may be an unfair use of it which will constitute unfair competition." Also, it is important to know that it has been held in numerous instances that unfair competition is not confined to the imitation of a trade mark, but takes as many forms as the ingenuity of man can devise. It may consist of the imitati#i of a sign, a trade name, a label, a program, an advertisement, or almost any other imitation by a business rival of some distinguishing earmark of an established business, providing the imitation is calculated to mislead the public and lead patrons into the belief that they are patronizing the original user of the name. Therefore, in determining whether or not a theatre name infringes a previously used one, the important consideration for the court is whether or not the patrons of the original theatre arc likely to be confused or deceived by the similarity of the later adopted name when used on the theatre, in the theatre advertisements, or otherwise. By LEO T. PARKER 1,687,193. CINEMATOGRAPHIC PROJECTION APPARATUS WITH OPTICAL COMPENSATION. Ludwig Bertele, Dresden, Germany. Filed Nov. 19, 1927. Serial No. 234,529, and in Germany Oct. 16, 1926. 3 Claims. (CI. 88—16.8) 1. A cinematographic apparatus for optical compensation of the movement of a film picture com A " £• /» . A. > prising a rota-table disk having a plurality of reflecting surfaces disposed annularly thereof, and curved, prismatic refractors each having varying effective optical distances carried by the disk to render the effective path of rays of light passing through the film of constant length. Generally it has been held that no person or firm is entitled to the. exclusive use of a trade name that merely describes the business to which it appertains. For example, trade names of theatres as "Motion Picture Theatre," "Show House" and the like, are purely descriptive of the business and are therefore the common property of all persons who choose to adopt and use them. Only such names, symbols, or combination of words that are distinctive in an original sense may be appropriated as trade names. Moreover, it has been held on numerous occasions that although a theatre name has been commonly used by theatre owners in different cities, the name may attain a secondary meaning which readily indicates a certain theatre to the public, the owner of the name may prevent other theatre owners from adopting it, under the circumstances that the first user is likely to be damaged by the second user. Therefore, such words as "National,"^ "American," "Safety," "New York," "Ohio," and the like, may acquire a valuation, although used in combination with other words which may be descriptive of the business, whereby the original user legally has the exclusive right to their use in the area in which the business is operated. For example, in the case of Cleveland Opera Company v. Cleveland Civic Opera Association, 154 N. E. 352, decided within the past few months, it was disclosed that in 1020 the Cleveland Opera Company was organized and began conduction of its theatre. In 1924 an other company was organized under the name of Cleveland Civic Opera Association and began operation of a theatre in the same city but in a different locality. The former company filed suit to prevent the latter from using the selected name Cleveland Civic Opera Association on the contention this name infringed the adopted name Cleveland Opera Company. The counsel for the Cleveland Civic Opera Association contended that its name was not so similar to the name Cleveland Opera Company to deceive the public, or injure the latter's business. However, the higher court, granted an injunction preventing the use of the Cleveland Civic Opera Association name and explained the law, as follows : "The great weight of authority is that there can be no monopoly in words of this character. . . . Now is there a substantial similarity in the names? . . . We must keep in mind, however, that while there is no monopoly in the use of the geographical and descriptive words, such as the word "Cleveland" and the word "Opera," yet these words are banned under the authorities, if when used in connection with the other words constituting the name they result in apparent or obvious confusion, or by inference tend in that direction to such extent that there is a probability that by reason of confusion unfair competition may be the result — in other words, unfair competition arises as the child of confusion. ... The use of the word 'Association' is indistinctive, and does not differ from the meaning and character of the word 'Company' . . . because an 'association' is essentially a 'company,' and thus there is nothing in its appearance or character that would fix it in a differentiating manner in the mind of one reading it. ... A comparison of the two names indicates such a great similarity that the only probable result would be in confusion, and, if confusion, then, naturally and probably, unfair competition." * * * Right to Use Own Name Very often, the owner of a theatre uses his name as a part of the firm name. Under these circumstances, if he is the first to use the name, he is entitled to its exclusive use in the locality from which his patrons are drawn. Moreover, another person having the same or similar name is liable in damages if he uses it as a part of a theatre name in the same locality from which the original user of the name draws patronage. In other words, no person has a legal right to use his own name as a part of or as the whole of a firm name, if such use effects' injury or damage to another individual or firm. On numerous occasions it has been held that the legal right of the original user of his name to obtain a judgment for damages, or injunction to prevent another from using the name, is based upon whether or not the new use results in loss or damage to the original user. Generally, the person who has last adopted the name, in the same locality, may avoid liability by having printed on his stationery, signs, advertisements, and the like, a notification in large type that he is not connected with the original user of the name. For illustration, in the leading case of Baker v. Baker, 77 Fed. 181, the court held a man named Baker liable for infringement and ordered him to use his name in such way as to make it "plainly distinguishable" from the