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

October 27. 1928 EXHIBITORS HERALD and MOVING PICTURE WORLD 125 original firm name in which a person named Baker used his name. Many other cases are on record where the courts consistently hold that while a person cannot be denied the privilege of using his own name, he must not use it in a manner designed to deceive the public. Moreover, slightly changing the form of an established trade name, as from "Parker Theatre" to "Parker House'' will not avoid infringement. The oldest and leading case involving this point of the law is Howard v. Henriques, 3 Sandr. 725. Previous to this litigation, it was generally contended that only the names of manufactured articles were subject to exclusive ownership of the first user. In this case, which is often cited in present day controversies, a man named Irvin had for many years operated a hotel named "Irvin Hotel." Another person established a hotel in the same city and used the firm name "Irvin House." The proprietor of the "Irvin Hotel" instituted legal proceedings against the owner of the "Irvin House" for damages. The higher court, in holding that the latter name infringed the former established the law for all classes of business, as follows : "A party will be protected in the use of a name which he has appropriated, and by his skilJ rendered valuable, whether the same is upon articles of personal property which he may manufacture. . . . Every man may and ought to be permitted to pursue a lawful calling in his own way. But he must not, by any deceitful, or other practice, impose upon the public and must not, by dressing himself in another man's garments, and by assuming another man's name, endeavor to deprive that man of his own individuality, and thus despoil him of the gains to which, by his industry and skill, he is fairly entitled. To make the application, if one man has, by superior knowledge, made his hotel desirable for the traveler, caused its name to become popular through the land, another man ought not to be permitted the same name in the same town, and thus deprive him who first appropriated the name of some portion of the fruits of that good-will which honestly belong to him alone. There is an abundance of names which they can designate their hotel, and if they can, by their own efforts, by their own skill and careful attention build up a profitable business and succeed in causing their hotel to become known and popular they will in turn be entitled to protection against those who may seek to deprive them of the advantage which they may thus honestly acquire." On the other hand, it is important to know that a person may, under certain circumstances, use his own name in connection with a theatre business although a previously established theatre in the same city may have adopted the same name. For illustration, in the leading case of Loew's Boston Theatre Company, 143 N. E. 496, it was shown that a man born in Rumania, was christened Elias Low, which at the place of his birth was pronounced Luev or Lurvre. He came to the United States in 1911, when 13 years of age, and entered the theatrical business in 1917. Since 1916 he spelled his name as Low or Lowe. After he was fairly launched in the motion picture businesses he adopted the middle initial "M" and spelled his surname "Loew." He became owner of a theatre at Lynn in 1918, and in 1919 bought one in Roxbury, and has since bought theatres, or an interest therein, at Portland, Lawrence, and Fitchburg, Mass., and also, in various other cities. In 1921 he formed a Massachusetts corporation, known as E. M. Loew's, Inc., the purpose of which was to buy and sell theatres. The word "Loew" was not used in connection with his theatres in Lvnn, Lawrence, or Portland. The one in Fitchburg was operated and advertised as "E. M. Loew's Majestic." Another man named Marcus Loew for 17 years had been conducting theatrical business under the name Loew's, throughout the United States and Canada. This chain of theatres is pell advertised, and the name "Loew's Theatre," and the kind and quality of entertainment which they provide have become well known. Marcus Loew, however, did not own or operate a theatre in Lynn, Lawrence, Portland, or Fitchburg, where the E. M. Loew's theatres were. Later Elias M. Loew opened a theatre in a suburb in Boston and Marcus Loew filed suit to prevent use of the name Elias M. Loew in connection with the theatre in this city. However, the court held Elias M. Loew within his rights in using his name in this manner, since it was provided that Marcus Loew's theatres were located in different suburbs of Boston than Elias M. Loew's theatre. This court in explaining the law said: 1,687,044. MOTION-PICTURE-FILM STRIP. Albert F. Sulzer, Rochester, N. Y., assignor to Eastman Kodak Company, Rochester, N. Y., a Corporation of New York. Filed Aug. 23, 1926, Serial No. 130.812. 9 Claims. (CL 95-9.) 30 Cellulosic Svppx-' 1. A motion picture film strip including a band of sensitized film with an unsensitized protective band at each end thereon, one end of each protective band being secured to one end of the film band, and each protective band comprising a strip of paper and a layer of stiffening and waterproofing cellulosic composition. 1.687,066. MOTION-PICTU RE-FILM STRIP. James H. Haste, Rochester, N. Y., assignor to Eastman Kodak Company, Rochester, N. Y., a Corporation of New York. Filed Aug. 23, 1926. Serial No. 130,786. 6 Claims. (CI. 95 — 9.) Kax u^er2 support 6 1. A motion picture film strip including a band of sensitized materia] and a protective band forming a continuation thereof and having a deposit consisting of wax upon one surface thereof. 1.687,100. MOTION-PICTURE-FILM STRIP. Frank W. Lovejoy, Rochester, N. Y., assignor to Eastman Kodak Company, Rochester, N. Y., a Corporation of. New York. Filed Aug. 23, 1926. Serial No. 130.791. 2 Claims. (CI. 95 — 9.) frtlirmUt ■Uillosursufport rQj* 1. A motion picture film strip including a band of sensitized film with a protective band at each end thereof, one end of each protective band being secured to one end of the film band, the film band comprising a support of cellulosic film and a sensitive layer theron and each protective band comprising a strip of paper and a pre-formed film of cellulosic material thinner than the film support and coextensive with the strip of paper and adherently secured thereto. "The plaintiff (Marcus Loew) is entitled to relief only on the ground of unfair competition or interference with his established rights. . . . There can be no recovery unless it appears that there has been a wrongful appropriation by the defendants (Elias M. Loew) of trade which belonged to the plaintiff (Marcus Loew). The mere use of a trade name which one person has found highly effective in bringing his goods to the favorable attention of the public in one business territory, by another person in another business territory, constitutes no actionable wrong. Actual or probable deception of the public to the harm of the plaintiff (Marcus Loew) is in fact a rival for the trade which the defendant (Elias M. Loew) secure . . . Unless and until the defendant (Elias M. Loew) shall unfairly interfere with the theatres of the plaintiff (Marcus Loew) in the same competitive terri tory, the court is not called upon to determine to what extent the defendant (Elias M. Loew) can and should be legally prevented from using the name Loew or E. M. Loew." Use of Name Restricted by Contract Another common source of litigation is where the owner of a theatre, in which is used his own name, sells the business or incorporates it, with the understanding or agreement that the purchaser has the right to use the same trade name, and then later the seller establishes a competing business in the same locality and attempts to use his name in the trade name of the new business. The case of W right Company v. Seattle Company, 122 Pac. 348, disclosed that a proprietor named "Chauncey Wright" organized a company which was duly incorporated under a changed firm name. Later Wright opened a competing business and had painted on signs of the business "Chauncey Wright." The stockholders of the old corporation instituted legal proceedings to prevent Wright from displaying his name in the competing business. And in view of the testimony that Wright had agreed to having his name used in the old business, the court promptly ordered the use of the name "Chauncey Wright" discontinued in the new business, and said : "It was also agreed that the name 'Chauncey Wright' should remain, and the business of the corporation should be conducted in that name. Unquestionally, the right to use the name as a trade name passed to the corporation by the consent of all parties concerned. While every person had undoubted right to use his own name to his own business, he cannot so use it as to unfairly compete with another with whose business that name has become identified and rightfully used as a trade name." (Also, see 224 F. 932.) However, this latter case should not confuse the reader into believing that a theatre owner who sells his business, without an understanding that the purchaser intends to operate the business under the same name, may not use his name in a competing firm. In fact a person who sells his theatre business may use his name in a later established competing business, if it can be proved that he has not agreed that he will not establish a competing business, and use of the name is not unfair competition. For example, in The Batchelder v. C. H. Batchelder, 107 N. E. 455, it was shown that a corporation was chartered as "The C. H. Batchelder Company," with C. H. Batchelder a stockholder. Later Mr. Batchelder disposed of all of his stock and after the company was reorganized, he set up a competing business using his own name as a part of the firm name. The corporation sued Mr. Batchelder asking for damages and an order from the court restraining the latter from using his name in connection with the newly established business. During the trial testimony was introduced showing that Mr. Batchelder had exercised great care to inform by advertisements and explanation that he no longer was connected with the former company and that he had established a new business. In view of this testimony, since the evidence failed to show unfair competition, the court held Mr. Batchelder not liable, and in effect said : "It is further found, that except for the similarity of names, the public have not been misled ; but as the names of the business are similar some confusion has resulted wherebv customers intending to trade with the corporation have purchased of the corporation under the impression that he was connected with the company The right to use his own name in earning a livelihood should not be taken away, and, being under no contractual obligation to the corporation to refrain from soliciting customers wherever he can find them, so long as he does not represent himself as being the C. H. Batchelder Company, it has not made out a casr for equitable relief.'' •