Neubert v. Neubert

¹⁷³ Urner, J., delivered the opinion of the Court. The question presented on this, appeal was raised in the lower court by demurrer to the bill of complaint, which alleged in substance that the plaintiff, Charles ISTeubert, has been conducting in the City of Baltimore, since 1885, the business of shucking, packing, selling, and shipping oysters to various points throughout the United States; that he carried on the business, for a number of years in his own name, but for the past twenty-five years in the name of “Chas. ISTeubert & Co.”; that the business has been very successful because of the extensive advertising by the plaintiff of his oysters, and of their good quality, and has established a name for “ISTeubert Oysters” throughout the United States and parts of Canada; that “the name ‘ISTeubert,’ which is not a name commonly met with, has thus become associated in the minds of a great many purchasers, with shucked oysters”; and that the plaintiff was the only person in Baltimore engaged in shipping oysters under the name of “ISTeubert” prior to the use by the defendants of that name in the oyster shipping business. It was further alleged in the bill that the defendants, Frank D. ISTeubert, Leo.

ISTeubert, and Charles A. ISTeubert, have conducted in Baltimore, since the year 1921, the business of packing and shipping oysters under the name of “Castle Packing Company,” but in the fall of 1931 they commenced to operate under the name of “ISTeubert Bros.,” and have extensively advertised their business under that name, and that the defendants “have taken no- adequate means to prevent misunderstanding in the minds of the purchasing public as to the identity of ‘ISTeubert Bros.’ with ‘Chas, bTeubert & Co.,’ although they began using the name ‘ISTeubert’ in connection with the shipping of oysters long subsequent to the time when the plaintiff established himself in that field.” It was averred that the action of the defendants in thus using the name “Ueubert” without adequately explaining that they were not connected with the business of the plaintiff has caused confusion and misunderstanding in the minds of many purchasers of oysters throughout the United States, that, prior to the adoption by the defendants ¹⁷⁴ of the name “Reubert” for their business, many orders for the plaintiff’s oysters came by letter or telegram addressed simply to “Reubert, Baltimore,” but, if the defendants are permitted to use that trade-name without explanation that it has no relation to the plaintiff’s business, great confusion will exist, and that customers of the plaintiff have inadvertently sent orders to defendants, which were really intended for the plaintiff, and he has received orders and telegrams which he has forwarded to the defendants as the obviously intended recipients. The bill then alleges that the plaintiff requested the defendants either to avoid using the name “Reubert” for their trade purposes, or t» use it with language indicating clearly that they were not connected with the business which the plaintiff has conducted, but the defendants refused to comply with either of those requests. The arguments on appeal are in accord as to the principles of law invoked, but their application to the facts alleged by the bill is controverted. It is agreed that the defendants have the right to use their own surname as a designation of the partnership business in which they are engaged, and that the right of the plaintiff to require the defendants to employ distinguishing terms depends upon the question as to whether the previous use of the name by the plaintiff has become so associated with the product of his oyster packing industry that its unqualified adoption for a similar enterprise would involve unfair competition.

In that event the plaintiff would be entitled to the benefit of the secondary meaning which the name had thus acquired, and it would be the duty of the defendants to respect that right by accompanying