A. Weiskittel & Son Co. v. J. Harry C. Weiskittel Co.

Sloan, J., delivered the opinion of the Court. The plaintiff, A. Weiskittel & Son Company, a corporation organized about 1907 under the laws of Delaware, with its operations in Baltimore, was engaged in the busi ³⁰⁸ ness of manufacturing gas ranges, soil pipe, and enamel ware. At the time of incorporation it was a partnership owned by Anton and Harry C. Weiskittel, who had inherited the business from their father, Anton Weiskittel, who entered into, about 1850, a business which, in the course of time, assumed considerable proportions. The sons of Anton went along, prospering together, until February, 1925, when Anton, son of the founder, died; leaving a will whereby he left one-fourth of his interest in the corporation (about one-half) to his sons Herbert L. Weiskittel and Francis A. Weiskittel and the remaining three-fourths to the sons in trust for his wife and two daughters.

Almost immediately, when the business was about at its peak, discord arose, resulting in a bill for receivership being filed by the sons of Anton, without any foundation, except an emotional one which needs no discussion here. The upshot of all the contention was that an auction was held, attended only by Harry C. Weiskittle, his sons, Harry C. Weiskittel, Jr., and Anton K. Weiskittel, on one side, and his nephews, Herbert L. Weiskittel and Francis A. Weiskittel, on the other side. The bidding resulted in the purchase by the nephews, sons of Anton, deceased, of the interest in the corporation of Harry C. Weiskittel, for $376,000. It was openly asserted by both sides that, in the event of the purchase by either, the other would go into the same line of business as that theretofore carried on by the old concern.

So there was no sale of good will; on the contrary, the inheritance of ill will and bitterness, which Anton unintentionally left behind him. After so selling their interest in the plaintiff corporation, Harry C. Weiskittel and his sons formed a corporation under the name of “Harry C. Weiskittel Company, Incorporated,” which began at once to erect a plant on the Philadelphia Road, in Baltimore, for the manufacture of gas ranges and soil pipe, entered into active competition with the old company, and made its first shipment of goods on August 20th, 1931. The old company, on July 11th, 1932, filed its bill of complaint, amended December 20th, 1932, against Harry C. Weiskittel Company, Incorporated, and ³⁰⁹ Harry C. Weiskittel and his sons, praying: (1) That the defendants be enjoined from making “misrepresentations either express or implied whereby and wherefrom prospective customers might be led to believe that the gas ranges manufactured by the defendant corporation are manufactured by the plaintiff” which manufactures “Fire King” ranges: (2) that they be restrained from use of the name of “Harry C. Weiskittel Co., Inc.,” without some descriptive text explaining that said company is not the manufacturer of “Fire King” gas ranges nor are any of its products the products of the plaintiff company, and from employing the name “Weiskittel” as any part of a corporate firm name, located in Baltimore, Md., in the manufacture of products similar to those manufactured by the plaintiff; (3) for an injunction pending the suit; (4) an accounting “of all profits made on gas ranges so fraudulently sold”; (5) a money decree; (6) general relief. The defendants answered the bill, and demurred by way of answer to the amendment, but no action appears to have been taken on the demurrer, and, as the hearing and decision were on the merits, we can only so consider the case here.

The plaintiff makes a soil pipe under the name “Master Hub”; the defendant corporation one under the name “Star Hub,” which is purchased from another concern, but as no complaint is made of the name of the soil pipe it is not in the case except as the product of “Weiskittel.” The gas range of the plaintiff, and its principal product, is known under the trade-name “Fire King.” The range made by the defendant corporation is sold to the trade under the name “Real Host,” and in addition it makes ranges for its customers under any name ordered, none of the names so used to date resembling in name the plaintiff’s product. It, therefore, requires no argument or discussion to say that there is nothing unfair in the use made by the defendants in the brand or name of their respective gas ranges. The whole controversy then revolves around the use ³¹⁰ made by the personal defendants of their surname, “Weiskittel,” in the charter of their corporation and in the conduct of its business. It is conceded by the defendants that if they misrepresented their products as the plaintiff’s, such conduct would be a fraud on the plaintiff which could be restrained.

This would be just as true if the use of the word “Weiskittel” had that effect. The proof of fraud may be actual or constructive. The right of a corporation to the exclusive use of its corporate name is a common law right, and equity will “prohibit another from using a name so similar to the corporate- name as to be calculated to deceive the public.” Drive It Yourself Co. v. North, 148 Md. 609, 614 , 130 A. 57 . It is not necessary to await the demonstration of confusion by actual experience, as the fraud may be so transparent as to be apparent to any observer.

Burton v. Taxicab Company, 156 Md. 183, 185 , 143 A. 799 . The incidents of actual confusion which arose between August 20th, 1931, and the 5th day of January, 1934, the day the hearing began, are so infrequent and trifling as compared with the number of transactions of either party as to require little, if any, comment. In nearly two and a half years there had been thirty-six letters addressed to the defendant intended for the plaintiff. In 2,529 calls on the plaintiff for service on or repairs to gas ranges over a period of fourteen months, it was found, when the plaintiff’s employees called in answer to such requests, that, twenty-three were on “Real Host” ranges made by defendants.

There was confusion in only five or six accounts with customers, one of whom was a customer of both companies. Hecht Co. v. Rosenberg, 165 Md. 116 , 166 A. 440 . With such facts as illustrations of actual confusion of the two businesses, let us see what the proof of constructive fraüd is, and how far it may be calculated to mislead and deceive the public into believing it may be buying the products of the defendant when it intends to patronize the plaintiff, which after all is the test of fraud, in order to be the foundation of such a proceeding as this is. Here, ³¹¹ however, if there is any fraud it must be in the secondary meaning of the word “Weiskittel,” in association with and as denoting the products made by the plaintiff.

In other words, when the customer thinks of gas ranges, of whatever name, does he think of “Weiskittel” or is he attracted by the name “Fire King,” “Real Host,” “Oriole,” or some other brand? Does the merchandise sell itself, or does it require salesmanship? On its organization the defendant company published in the Baltimore Sun the following announcement: ‘ ‘Announcement “Harry C. Weiskittel, Sr. “Anton K. Weiskittel and “Harry C. Weiskittel, Jr.., are no longer connected with A. Weiskittel & Son Co. “A new corporation, Harry C. Weiskittel Co., Inc. has been organized to manufacture a new and modern line of Gas Ranges, Cast Iron Soil Pipe and Fittings and other Plumbing Fixtures. “We take this opportunity to thank the trade and public for the many past personal favors and the new company hopes to merit your future confidence and patronage. “Harry C. Weiskittel Co., Inc.” On their correspondence they pasted a sticker, reading as follows: “IMPORTANT “We have no connection with any other company. Be careful to address your orders to “Harry C. Weiskittel Co., Inc., “4901 Philadelphia Road, Baltimore, Maryland. “Telephone Broadway 0600.” On the bottom of its letterheads this is printed: “NOTICE: — We have no connection with any other company.

Be careful in addressing your mail.” These notices or warnings were offered by the defend ³¹² ants as evidence of their efforts to advise the public that they were going into and were in business on their own account, and to avoid any confusion of their business with that of the plaintiff, into which they had been born and to which up to that time they had devoted their energies and which was the only business they knew. On the other hand, it might be said they had cashed in all the efforts of themselves and their forebears, and the account was closed, and that the credit was on the