Mundon v. Taxicab Co.

Parke, J., dissents on the sole ground that he does not agree that the color scheme and markings of the cabs of the competing cab companies are so similar as to constitute unfair competition on the part of the appellant. Bond, C. J., delivered the opinion of the Court. The appellant, defendant below, appeals from a decree enjoining him from operating taxicabs owned by him, in Baltimore City, without taking measures to distinguish them in appearance from those of the Taxicab Company, now named the Yellow Cab Company, the appellee. The evidence establishes these facts: The Taxicab Company has been operating cabs in the city since 1909, and for the first ten years of that period h'ad them painted in a uniform combination of colors, with brown predominating.

They were then commonly known as brown cabs. In 1919, the uniform color combination was changed, and a combination of orange yellow with black was adopted, in order, as the president of the company testified, to have “a more distinctive color, something that would give us greater value for the purpose of emphasizing the cab and services in the public mind.” There were then fifty ⁴⁵¹ cabs. Since that time, the number in operation has increased to one hundred and seventy, all bought of- the Yellow Cab klanufacturing Company, at a total cost of $360,000; and they have been advertised extensively at a total cost of $83,000. It is also established by the evidence that by thus bringing its cabs in this color combination conspicuously before the public, the company has identified them in the public mind as those of the one particular organization, and by maintaining a good quality of service has built up a valuable trade and good will for them.

Evidence was given of preferences of at least some individuals for them. Contracts have been made with hotels and owners of other public places for privileges and assistance in obtaining passengers, usually upon an arrangement for the payment of commissions for the assistance. The arrangement of colors is: the body in orange yellow below, the doors outlined with black; top-, hood and fenders in black; disc wheels in orange yellow again with black hubs. On the door there is a round emblem in gold, white and blue, six or eight inches in diameter; and a number is painted on the side and back.

It is the custom of all large operators of taxicabs in the city to put their cabs out in uniform color combinations, and all are thus distinctly marked in different combinations. Throughout the period since 1919, when the present color combination was adopted by the appellee, the company styled itself, in its advertising, “The Yellow Cab Company,” and its cabs are commonly known as the “yellow cabs.” In December, 1925, after this proceeding was instituted, the name of the company was formally changed to “Yellow Cab 'Company,” by an amendment of its charter. In the year 1925, the appellant, Robert C. Mundon, bought a taxicab with a Dodge chassis, painted blue, and had it repainted in approximately the same shade of orange yellow, and a very dark bine black, in practically the same markings or arrangement of the colors, that is to say, the lower body is in the yellow, with the doors outlined in black, and the top, hood and fenders are in black. The differences between ⁴⁵² the two cabs in appearance are, that there is to be observed, by matching the colors closely, a slight difference in the shades of yellow; the disc wheels are mainly yellow in the company’s cabs, but light blue in Mundon’s; there is no emblem on the side of Mundon’s cab; each company cab has a “vacant” sign, a light on the meter and cowl lights, while Mundon’s has none of these, his cab having only standard headlights.

And Mundon’s cab has no number. The company’s drivers wear uniforms, with yellow bands on the caps, and the appellant’s driver wears no uniform, although he sometimes wears a chauffeur’s cap. None of these differences seem to be sufficient to distinguish the cabs of the two proprietors in the sight of the ordinary customers. There is testimony of instances of actual confusion.

And photographs of the appellant’s cab and of a sample cab of the appellee, each photograph colored by a painter from the original, were introduced in evidence below, and, by agreement, have been exhibited in this court, and show, we think, that confusion must almost inevitably occur. The resemblance is so close that deliberate copying seems to be the only explanation of it. And we conclude that the appellant has, in fact, attempted, by copying the color combination of the appellee’s cabs, to appropriate some of the fruits of the latter’s enterprise and labor. And, that such an attempt is a wrong which a court of equity ordinarily prevents, need not be argued at any length now.

Robertson v. Berry, 50 Md. 591 . In all other jurisdictions where this exact question has arisen, the attempt has been prevented by an injunction similar to that decreed in this case. Taxi & Yellow Taxi Operating Co. v. Martin, Harvey, & Dunn, 91 N. J. Eq. 233; Yellow Cab Co. v. Becker, 145 Minn. 152 ; Yellow Cab Co. v. Jones, 156 La. 837 ; Yellow Cab Co. v. Creasman, 185 N. C. 551 . And see notes, 17 A. L. R. 784, 787, and 28 A. L. R. 115.

Some defenses common to all these cases have been presented in this one. It is contended that, inasmuch as the resemblance is one of colors, it affords no ground for interference by the court, on the principle that mere color is not ⁴⁵³ regarded by the law as susceptible of exclusive appropriation. There is no resemblance in emblems or lettering; nothing in the shape or size of the appellee’s cab which distinguishes it from any other cabs, or to which there might be an exclusive right if it did. The resemblance is one of colors.

But it is also, and chiefly, in the arrangement or massing of the colors on the two cabs that the resemblance is brought about here. The complaint is not so much of the use of the same colors as it is of the use of the same identifying combination of those colors. “One often sees the rule stated,” says Nims on Unfair Competition and Trade Marks (2nd Ed.), 238, “that the use of color or form or shape or any of the