Auto Parts Co. v. Silverstein, 211 Ill. App. 436 (1918)

June 14, 1918 · Illinois Appellate Court · Gen. No. 23,594

211 Ill. App. 436

Auto Parts Company, Appellee, v. Joseph Silverstein and Sam Goodman, Appellants.

Gen. No. 23,594.

(Not to be reported in full.)

Abstract of the Decision.

1. Corporations, § 62 ^* — what is extent of protection in use of corporate name. A corporation in business is entitled to protection in the use of the name under which it is incorporated to the same extent as an individual would be entitled to protection in the use of his individual name.

Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1917.

Affirmed.

Opinion filed June 14, 1918.

Statement of the Case.

Bill by Auto Parts Company, complainant, against Joseph Silverstein and Sam Goodman, defendants, to enjoin the latter from doing business under the name “Auto Sales and Parts Company.” From a decree for complainant, defendants appeal.

Rudolph Wolfner and Reuben J. Feldman, for appellants; Rudolph Wolfner, of counsel.

No appearance for appellee.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

* See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Matchett

delivered the opinion of the court.

2. Trade-marks and trade names, § 23 ^* — when relief granted against use of generic or descriptive name. While names which are generic terms or merely descriptive are the common property of the public, and a private property interest cannot be acquired, relief will be granted where a name of this character has been adopted under circumstances which make it appear that the purpose of adopting such name was to mislead the general public.

3. Trade-marks and trade names, § 22* — what is duty of trader adopting trade name similar to one in use. Regardless of fraudulent intent or actual injury, it is the duty of a subsequent trader to adopt affirmative precautions sufficient to make confusion and deception in the use of a similar trade name improbable.

4. Trade-marks and trade names, § 24* — what constitutes unfair competition in use of corporate name. The use of the name “Auto Sales and Parts Company” held to constitute unfair competition as to an older and established concern trading, under the name “Auto Parts Company,” there being evidence that confusion resulted and no evidence of an innocent intention in making use of a name so similar.

5. Appeal and error, § 1399* — when findings of master not disturbed. Findings of the master approved by the chancellor will not be set aside unless clearly and manifestly against the weight of evidence.

6. Equity, § 404* — when amount of costs taxed for master's fees may not be complained of. The fact that the costs taxed for master’s fees are in excess of the amount requested by the master affords no ground for complaint where they are much less than the statutory fees.