Summary
In Baldassano v. Accettura, 336 Ill. App. 445 (1st. Dist.), the Appellate Court again, as in the Quinn case, recognized the right of the court to issue a preliminary mandatory injunction.
Summary of this case from Deisenroth v. DodgeOpinion
Gen. No. 44,709.
Opinion filed February 9, 1949. Released for publication March 9, 1949.
1. INJUNCTION, § 160 — denial of motion to strike complaint. Defendants' motion to strike complaint seeking injunctive relief was effectually denied by entry of order granting interlocutory injunction.
See Callaghan's Illinois Digest, same topic and section number.
2. INJUNCTION, § 160fn_ — effect of motion to strike complaint. Defendants' motion to strike complaint seeking injunctive relief admitted facts well pleaded.
3. TRADE MARKS AND TRADE NAMES, § 19fn_ — injunction against use of corporate name. Equity will give injunctive relief to a corporation where another has used former's name or a name so clearly similar as to lead to complication and confusion in business of parties, intentional injury being of no importance, and such rule is not limited to cases involving business corporations.
4. TRADE MARKS AND TRADE NAMES, § 23fn_ — interlocutory injunction restraining use of trade union's name. Where motion to strike complaint in suit for injunctive relief against organization of shoe shop owners admitted that defendants were using a name similar to that used by plaintiffs' labor union, that defendants were displaying signs bearing such name in shops, that such signs were made to imitate those displayed in plaintiffs' shops and were displayed to mislead public, and that plaintiffs' union and its members had been damaged in trade and reputation, order granting interlocutory injunction primarily providing restraint on use of name was not an abuse of discretion and was not objectionable as granting plaintiffs all relief to which they would be entitled after a full hearing.
Interlocutory appeal by defendants from the Circuit Court of Cook county; the Hon. C.J. HARRINGTON, Judge, presiding. Heard in the third division of this court for the first district at the December term, 1948. Order affirmed. Opinion filed February 9, 1949. Released for publication March 9, 1949.
FRANCIS HEISLER and JULIUS LUCIUS ECHELES, both of Chicago, for appellants.
LEON M. DESPRES, of Chicago, for appellees.
This is an appeal by several defendants from an order granting an interlocutory injunction. Sec. 78 C. P. A.
The defendants' motion to strike the complaint was effectually denied by entry of the order. The motion admitted the facts well pleaded. It admitted that plaintiffs' union has used the name United Shoe Service, Employees' Union, Local 1143 since 1937; that it is an affiliate of the A. F. of L.; that it is composed of more than four hundred shoe repairing and rebuilding workers; that the Union has established a valuable reputation through negotiating collective bargaining contracts in the interest of members and through the craftmanship of workers; that in 1948 defendants formed an organization of shop owners who do their own repairing and rebuilding; that it was formed to protect the interest of employers; that defendants selected for it the name United Shoe Service Union and it was chartered in that name by the C. I. O.; that defendant organization displays signs in its members shops bearing that name; that the signs are made to imitate signs of plaintiffs' union displayed in so-called union shops; that the selection and the use of the name by defendants' organization and the form and display of the signs is for the purpose of misleading the public; that the result has been to mislead the public into the false belief that the members of defendants' organization are members of plaintiffs' union; and that the plaintiffs' union and all of its members have been damaged in trade and reputation.
Plaintiffs do not claim that the defendants had no right to organize the employees and cannot claim that the C. I. O. had no right to issue the charter. The question presented is whether the chancellor abused his discretion in ordering the issuance of the temporary injunction. Cleaning Dyeing Plant Owners Ass'n of Chicago v. Sterling Cleaners Dyers, Inc., 278 Ill. App. 70.
The rule is that equity will give injunctive relief to a corporation where another has used the former's name or a name so clearly similar as to almost necessarily lead to complication and confusion in the business of the parties; and that intentional injury is of no importance. Koebel v. Chicago Landlords' Protective Bureau, 210 Ill. 176; Mt. Hope Cemetery Ass'n v. New Mt. Hope Cemetery Ass'n, 246 Ill. 416; Bender v. Bender Store Office Fixture Co., 178 Ill. App. 203; Job Printers Union of Chicago v. Kinsley, 107 Ill. App. 654; and Mossler v. Jacobs, 66 Ill. App. 571. The trend is to place less emphasis on the idea of business unfairness and dishonesty ( Merchants' Detective Ass'n v. Detective Mercantile Agency, 25 Ill. App. 250; McFell Electric Telephone Co. v. McFell Elec. Co., 110 Ill. App. 182) and more on confusion of the public. Investors Syndicate of America, Inc. v. Hughes, 378 Ill. 413. It has been held that proof of actual confusion is not essential. Famous Sea Food House v. Skouras, 272 App. Div. 258, 70 N.Y. S. (2) 702. The foregoing rules are not limited to cases involving business corporations; International Committee of Y. W. C. A. v. Y. W. C. A. of Chicago, 194 Ill. 194; Seattle Street Railway Municipal Employees Relief Ass'n v. Amalgamated Ass'n of Street, Elec. Ry. Motor Coach Employees, 3 Wn. (2) 520, 101 Pac. (2) 338.
Defendant contends that a temporary injunction should not be mandatory and that the instant order is unjust. The order primarily provides restraint on use of the name. The restraint on displaying the signs does require that the signs be removed. No purpose would be served in preventing use of the name if display of signs bearing the name is permitted. Moreover, the general rule as to mandatory injunctions is subject to exceptions. Quinn v. Fountain Inn, 218 Ill. App. 260; City of Rock Island v. Central Union Tel. Co., 132 Ill. App. 248. For a case similar to the instant case see Carolina Pines v. Catalina Pines, 128 Cal.App. 84, 16 Pac. (2) 781. Preservation of the status quo in this kind of case is not helpful to plaintiffs.
There is no merit in the contention that the order appealed from granted plaintiffs all the relief they would be entitled to after a full hearing. This is not a situation comparable to those in Cleaning Dyeing Plant Owners Ass'n of Chicago v. Sterling Cleaners Dyers, Inc., supra; Mitchell v. Hannah, 121 Ill. App. 597; or Levy v. Rosen, 258 Ill. App. 262. The injunction is temporary. The probability arising from the complaint is that unless defendants are restrained the public will be subjected to confusion through the continued use of the name and signs. We think that fact and the admitted damage to be suffered by plaintiffs far outweighs the inconvenience to be suffered by defendants. Alpert v. Koonin, 58 N.Y. S. (2) 757.
For the reasons given it is our opinion that the chancellor committed no abuse of discretion in ordering the issuance of the injunction.
Order affirmed.
BURKE, P.J., and LEWE, J., concur.