The film daily year book of motion pictures (1928)

ingenuity of man can devise. It may consist of the imitation of a sign, a trade-name, a label, a wrapper, a package, or almost any other imitation by a business rival of some distinguishing earmark of an established business, which the court can see is calculated to mislead the public and lead patrons into the belief that they are patronizing the first proprietor. Therefore, in determining whether or not one theater name infringes another, the important consideration for the Court is whether or not the general public may be confused or deceived by the similarity of the last adopted name as used on the theater or in the advertisements. The first question is whether there is an imitation and this must be determined by inspection of the rival symbols or names. It is not to be expected, of course, that there will ever be an exact copy. The imitator will always seek to introduce enough differences to justify a claim that there has been no imitation. A recent court decision said : "Unfair competition is distinguishable from the infringement of a trade-mark, in that it does not necessarily involve the question of the exclusive 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 capable of becoming an arbitrary trade-mark, and yet there may be an unfair use of it which will constitute unfair competition." In the case presently being discussed the counsel for the Cleveland Civic Opera Ass'n contended that its name was not so similar to the name Cleveland .Opera Co. to deceive the public. However, it is interesting to note that the higher court, in granting an injunction preventing the use of the Cleveland Civic Opera Ass'n name, said : "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 confusion, and, if confusion, then, naturally and probably, unfair competition " It is important to observe that the Cleveland Civic Opera Ass'n was prevented from adopting the name before it had actually begun the conduction of its business. Kegarding the adoption of firm names, this court quoted : "Where the name assumed is not identical, but similar, equitable relief is granted on a sufficient showing that injury would follow ; and to justify relief in this class of cases it has been held that the injury must appear to be of a substantial character and not merely fanciful or conjectural .... In case of mere similarity of name, on the other hand, the proof must show the probability of substantial damage. * * * NEW TAXATION MEASURES CONNECTICUT TAX BASED ON CAPACITY—Seating capacity of Connecticut theaters is the basis of a tax bill signed by Gov. Trumbull on July 1, 1927. Weekly fees range from $5 to $10. Ihe method supplants a flat tax of $10 a reel on films brought into the state for showing. Rates are as follows: For houses seating 1,500 or more, $40; from 1,000 to 1,500, $25; from 750 to 1,000, $20; 500 to 750, $15; less than 500, with performances three nights or more a week, $10; all others, $5. Theaters will make monthly returns. NEW TAX IN MARYLAND— Under a new schedule of fees which became effective in Montgomery County, Maryland, in Sept., 1927, picture theaters are assessed $100 annually, while street fairs and carnivals must pay $100 a week. SOUTH CAROLINA TAX UPHELD— The Supreme Court, Washington, D. C, on March 14, 1927, affirmed a decision of a lower court upholding the validity of the South Carolina theater tax of one cent for each ten cents or fraction thereof collected upon all admissions to places of amusement in incorporated towns having a population of 2,000 or more. The theaters paid the tax under protest and brought suit for recovery, alleging the law has violated certain sections of the state constitution and the provisions of the 14th Amendment to the Constitution in that it denied them equal protection of the laws by unjustly, capriciously, and arbitrarily discriminating against them in the classification made. * * * DECISIONS REGARDING LOTTERIES, PRIZES, ADVERTISING MATTER, ETC. DISTRIBUTING PRIZES ILLEGAL Illinois — It is illegal for owners of motion picture theaters to distribute prizes among patrons, according to an opinion handed down in Chicago in Sept., 1927, by Francis J. Vurpillat, assistant corporation counsel. LOTTERIES HALTED IN NEW ORLEANS Louisiana — Although the district attorney issued no statement regarding protest of local exhibitors over the recent rigid enforcement of the Louisiana lottery laws, the action of R. J. Brunet, owner and operator of the Harlequin, a New Orleans suburban theater, in October, 1927, had its effect on the measure. Brunet was the first victim of the decision to rigidly enforce Act 280 of 1914, relative to operating lotteries. Brunet was charged with issuing stubs to patrons and then awarding prizes to holders of winning coupons. A number of local independent suburban exhibitors backed Brunet in his appeal to the mayor. They stated that the custom of giving prizes, especially at the Saturday and Sunday night shows, was long established in New Orleans, and that its discontinuance would reduce their business materially. Mayor O'Keefe's answer was that he could not go beyond the ruling of the district attorney. But since the protest no further efforts have been made by either the district attorney's office or the police to enforce the law as it relates to the issuing of coupons for prizes in theaters. COUNTRY STORES RULED OUT Colorado — Country store nights at theaters were ruled as violations of Denver city ordinance against lotteries, and were orcfered discontinued after Nov. IS, 1927. DOG RACES ILLEGAL Minnesota— State's Attorney General ruled in Oct., 1927, that dog races on stages of theaters, or any other public place, were illegal if spectators shared in the winnings of the dogs. DRAWINGS, LUCKY NUMBERS BANNED Massachusetts — Following up the ban made by Boston police in April, 1927, attorney general's office ordered lotteries of all kinds stopped in film theaters, carnivals, church affairs and other places. Police officials warned exhibitors that the attorney gejieral would act against all forms of drawings, lucky numbers, lucky seat holders, etc. Chiefs have been ordered to confiscate the prizes offered and to report any lack of cooperation by the lower courts in prosecuting cases, to the state house. Scores of theaters were running contests for automobiles and equally valuable prizes. They were 789