Opinion
February 10, 1961 —
March 7, 1961.
APPEAL from two orders of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Appeal from first order dismissed; second order affirmed.
For the appellant there were briefs and oral argument by Herbert L. Mount of Milwaukee.
For the respondent Milwaukee Broadcasting Company there was a brief by Roberts, Boardman, Suhr, Bjork Curry of Madison, and oral argument by W. Wade Boardman.
For the respondent Hornbach there was a brief by Kivett Kasdorf, attorneys, and Alan M. Clack of counsel, all of Milwaukee.
Action in equity praying for an injunction, an accounting, and damages. The action was commenced by the plaintiff, Bartell Broadcasters, Inc., against Milwaukee Broadcasting Company. The allegations of the complaint may be summarized as follows:
On July 1, 1953, plaintiff began to broadcast a program called the "Mad Man Michaels Program" between the hours of 6 a.m. and 9:30 a.m. daily except Sundays. The program consisted of musical recordings, announcements of news, weather, correct time, and similar information. The announcer was an individual known by the fictitious name of "Mad Man Michaels." The program was continuously broadcast in the same or similar manner to the time of the commencement of the action. The plaintiff has expended large sums of money in the promotion and exploitation of the "Mad Man Michaels" program and enjoyed a widespread interest therein among the listening public. Advertisers sought to have announcements interspersed throughout the program and plaintiff received substantial revenues therefrom. During the six months prior to the commencement of the action the title and name of the program had been slightly altered and was known as the "Mitch Michael Program" but the format has remained unchanged and its popularity with the listening public has continued undiminished. By reason of its long usage of the program and particularly the identifying names or titles "Mad Man Michaels" and "Mitch Michael," both of which are fictitious names, and by reason of its substantial investment in the promotion of the program, plaintiff has acquired a proprietary interest therein which is of substantial value. On or about the 13th day of September, 1960, the defendant broadcasting company announced in a newspaper advertisement that "Mad Man Michaels Is Back" and that "WEMP's Got Him." In addition to the title "Mad Man Michaels" the defendant is using an identical format and an identical character as the announcer in imitation of the long-established program of similar name used by the plaintiff; that defendant's purpose is to attempt to capture an audience during the hours of 6 a.m. and 10 a.m. which has been developed and exploited by the plaintiff at great expense; that the deliberate imitation of its program by the defendant has already caused, and will continue to cause, confusion in the minds of the radio-listening public, to the plaintiff's damage. The defendant is using other means of advertising its new "Michaels" program and said advertising is confusing and misleading to the public and constitutes unfair competition as to the plaintiff. Plaintiff believes that it will be seriously damaged, suffer loss of patronage and listeners with resulting loss of revenue and profits unless the defendant is restrained and enjoined by the court from continuing its unfair business practice and unfair competition. Plaintiff has no adequate remedy at law and unless the defendant is restrained and enjoined from continuing its unfair competition and its imitation of plaintiff's program, plaintiff will suffer irreparable damage.
Based upon the complaint and an affidavit by an officer of the plaintiff corporation, an order to show cause was issued that contained a temporary provision restraining the defendant from using the title "Mad Man Michaels" or a similar title for a radio program.
The defendant broadcasting company, by its answer, substantially denied most of the allegations in the complaint, including denial, upon information and belief, that there was any program on plaintiff's station known as the "Mad Man Michaels Program." There were allegations in the answer that from July 1, 1953, to approximately February 1, 1960, plaintiff employed a well-known broadcaster or disk jockey whose professional name was, and for many years had been, John Michaels; that said John Michaels had developed a descriptive characterization as "The Mad One," "The Mad Man," and similar variations. The answer further alleged that on August 23, 1960, defendant entered into a contract with a radio announcer and disk jockey who was and is, and for about twelve years has been, prominently known as John Michaels and characterized as "The Mad Man" and similar characterizations; that said John Michaels was engaged as an announcer on the defendant's 6 to 10 a.m. program, which is and for many years has been known as the "Coffee Club;" that defendant is in no way imitating any program of plaintiff's and has no intention of doing so; that any similarity between plaintiff's Mitch Michael program and defendant's Coffee Club program will not be due to any imitation of plaintiff by defendant but to an endeavor by plaintiff to appropriate a fictitious name which may be confused with the name of John Michaels and to have an unknown announcer imitate the style of plaintiff's former employee, John Michaels, in the hope of creating the impression that John Michaels is still broadcasting for plaintiff.
John Michael Hornbach filed a petition for leave to intervene in the action for the reason that he is the announcer known as "Mad Man Michaels" and that his interests and earning capacity may be affected by the outcome of the action between the two broadcasting companies, and he asked further leave to serve a proposed cross complaint upon the plaintiff, which was annexed to the petition.
By affidavit and by the proposed cross complaint the petitioner alleged that by profession he is a radio announcer; that his professional name is "John Michaels" who is also known in the profession as "Mad Man Michaels," "Michaels, the Magnificent One," etc.; that he was so known when working for radio stations in the state of Ohio for approximately five years before he was employed by plaintiff; that his contracts of employment with plaintiff were under the name of "John Michaels;" that the popularity of his program while employed by the plaintiff was built up through his own efforts and by personal expenditures by him; that he broadcast for a station in Detroit after leaving the employment of the plaintiff for a period of six months before returning to Milwaukee; that he then offered his services to the plaintiff but was told that they had no place for him; that the use of the fictitious name of "Mitch Michael" is an attempt on the part of the plaintiff to confuse the radio-listening public and constitutes an unfair business practice which seriously threatens his rights as to the use of the title and style which he personally developed over the years, and which threatens his earning capacity in the radio industry. The cross complaint prays for an injunction restraining the plaintiff from the use of the name "Michaels" in any form on its broadcasts.
The plaintiff filed an amended complaint which contained the allegations in the first complaint but added allegations that the name "Michaels" and the program title "Mad Man Michaels" has acquired a secondary meaning by having been used exclusively by the plaintiff for a long period of time and that the use and appropriation of said name by the defendants will tend to confuse the public, and further that prior to the commencement of the action plaintiff made demand upon the defendant broadcasting company that it desist and discontinue the use of said name or program title but that said defendant neglected, failed, and refused to discontinue such use.
The first order appealed from is dated October 1, 1960, and permitted John Michael Hornbach to intervene as a party defendant in the action. The second order appealed from is dated October 3, 1960, and denied the motion of the plaintiff for a temporary injunction pending the trial of the action. Plaintiff appealed from both orders.
The attorneys for John Michael Hornbach contend that the first order is not appealable. They point out that an application for leave to intervene in an action is a special proceeding and that an order made in a special proceeding, to be appealable, must be a final order. Sec. 274.33(2), Stats.
The order permitting intervention determines no final rights of any of the parties and in no way precludes ultimate judgment for or against any of the parties from which an appeal can be taken. The plaintiff in effect admits this contention but states that many orders, not of themselves appealable, may nevertheless be reviewed in the course of an appeal such as the instant case presents. No authority is cited for the statement and it is apparent that the order is not an appealable one under the statute quoted. Therefore the appeal from said order must be dismissed.
As to the second order, plaintiff first contends that radio trade names, titles, and names of fictitious characters are legally protectible under the law of unfair competition. Many cases are cited in support of that rule. In Premier-Pabst Corp. v. Elm City Brewing Co. 9 F. Supp. 754, and in Storer Broadcasting Co. v. Jack The Bellboy, 107 F. Supp. 988, two cases cited by the plaintiff, it is stated a fictitious name or sobriquet of another, if lawfully acquired, may be protected. Nothing in the pleadings or affidavits indicates that the plaintiff acquired the right to use the name "Michaels" or "Mad Man Michaels" by contract. The only contention is that by creating a fictitious name and building up the popularity thereof by the expenditure of time and effort it has gained a proprietary interest therein and that the term has acquired a secondary meaning which identifies it with the plaintiff's radio station to such an extent as to create property rights thereto. This contention is put squarely in issue by the defendant broadcasting company and by the intervening defendant.
Sec. 268.02(1), Stats., is entitled "Temporary injunction; when granted." The statute has been on the books for many years and there have been many decisions on the subject. We have held in many cases that on an appeal from an order refusing a temporary restraining order the merits of the case are not before the court. The only question is whether the trial court abused its discretion. State ex rel. Attorney General v. Manske, 231 Wis. 16, 285 N.W. 378; Mogen David Wine Corp. v. Borenstein, 267 Wis. 503, 66 N.W.2d 157; Culligan, Inc., v. Rheaume, 269 Wis. 242, 68 N.W.2d 810. The statute provides the reasons for which a temporary injunction may be granted.
Language can be found in opinions of this court that seems to express general rules to be applied in actions for injunctions. However, injunctions are not to be issued lightly but only to restrain an act that is clearly contrary to equity and good conscience. Whether or not an injunction should be granted depends upon the facts and circumstances in each case. A quotation from an opinion in a prior case is of no value as a precedent without a review of all of the facts and circumstances there present.
The plaintiff cites cases wherein this court has stated that temporary injunctions should be granted to maintain the status quo or to prevent irreparable injury when it is clear that the law cannot give adequate protection and relief to a party. The plaintiff cites other cases holding that this court should exercise its discretion and order a temporary injunction where the trial court refused to do so because of a mistaken view of the law. As an example of maintaining the status quo there is the case of Eau Claire Dells Improvement Co. v. Eau Claire, 134 Wis. 548, 115 N.W. 155, where the injunctive order granted by the trial court was enlarged to maintain the status quo in a situation that had existed for approximately thirty years. The situation here is far different.
The plaintiff contends that it has no adequate remedy at law and that it will suffer irreparable injury unless the defendant is restrained as prayed for in the complaint. On the other hand, the defendants claim that they will be irreparably injured if a temporary injunction is granted.
In Vredenburg v. Safety Devices Corp. 270 Wis. 36, 39, 70 N.W.2d 226, we quoted the following with approval:
"`Where the issuance of a preliminary injunction would have the effect of granting all the relief that could be obtained by a final decree and would practically dispose of the whole case, ordinarily it will not be granted, unless complainant's right to relief is clear.'" 43 C.J.S., Injunctions, p. 428, sec. 17.
In view of the sharp issue raised by the pleadings, an order requiring the issuance of a temporary injunction would practically require an examination of the merits and a determination of the issues. The trial court could not do this, and we cannot. Nor can we determine from the short transcript of a hearing before the trial court that its order denying a temporary injunction was based on a mistaken view of the law. The trial court made a short statement as to the possible application of law depending upon facts that would be developed upon a trial.
Our determination in this case depends upon the answer to one question. Has the plaintiff, by the record presented, demonstrated that the actions and conduct of the defendants is contrary to equity and good conscience? The answer must be "No." The material allegations that plaintiff relies upon are controverted. The ultimate facts will have to be determined by a trial of the issues. Our equitable powers are great, but they should be exercised with caution and only where the reason and necessity therefor are clearly demonstrated. At this point in the litigation, plaintiff has not so demonstrated.
By the Court. — Appeal from the order permitting John M. Hornbach to intervene as a defendant is dismissed. Order denying a temporary injunction is affirmed.