Music Trade Review

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THE MUSIC TRKDE
the confusion existing; as to the two pianos,
and attaches to his affidavit a letter from
John J. Merrill, director of music, University
of Oklahoma, in which he states: "If there
are two Chickerings, how am I to tell which
is the genuine one? If all this be true, my
faith in the d i c k e r i n g as a make is not so
solid."
In the Musical Courier Extra of September
21, 1901, appeared the following advertise-
ment, following a cut of a Chickering Bros,
piano: "Here is the handsome design of a
Chickering Bros, piano. From a very mod-
est beginning Cliff C. Chickering, who is
the head of the Chickering Bros, industry in
Chicago, has built up a good business, and
is breaking the way for a future both sub-
stantial and permanent. The Chickering
Bros, piano is not yet being produced in large
quantities. The factory is not of giant pro-
portions. Consequently the trade is not sup-
plied in great numbers, but such dealers as
do buy and push the Chickering piano ex-
press their satisfaction and commend the
characteristic improvements contained in it.
Cliff Chickering is a practical piano-maker,
and it is his skill and individuality that give
force and character to the Chickering Bros,
piano."
Upon the state of facts substantially as
hereinbefore outlined, complainant prays,
among other matters, that a preliminary in-
junction issue against defendants, restrain-
ing them and each of them, their attorneys,
agents, servants, etc., from manufacturing or
dealing in pianos under the name of Chick-
ering Bros., or any name in which "Chicker-
ing" forms a part; from dealing in any piano
upon which the word "Chickering" appears,
or any piano sold or offered as a "Chicker-
ing" ; and from representing that their piano
is the "Chickering" piano; and from using
the word "Chickering" as a part of a cor-
porate name for the business of manufactur-
ing or dealing in pianos; and from using
the said maltese cross in any manner in con-
nection with the piano business; claiming
that such use of said name "Chickering" is
a fraud upon complainant and upon the pub-
lie.
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Thus, it will be seen, complainant seeks to
restrain defendants Chickering from the use
of their own name in connection with the
manufacture and sale of pianos, in the man-
ner in which they are now using the same.
It is undoubtedly the purpose of the law,
generally speaking, that every man shall,
under reasonable conditions, have the right
to use his own name in his business affairs.
In the case of Elgin Watch Co. vs. Illinois
Watch Co., 179 U. S., 665, Chief Justice
Fuller, affirming the court of appeals for this
circuit, said: "Where an alleged trade-mark
is Tiot in itself a good trade-mark, yet the
use of the word has come to denote the par-
ticular manufacturer or vendor, relief against
unfair competition or perfidious dealing will
be awarded by requiring the use of the word
by another to be confined to its primary sense
by such limitations as will prevent misappre-
hension on the question of origin. In the
latter class of cases, such circumstances must
be made out as will show wrongful intent in
fact, or justify that inference for the inevit-
able consequences of the act complained of."
In Pillsbury vs. Pillsbury-Washburn Co.,
64 Fed., 841, the Court of Appeals for the
seventh circuit approve of the doctrine laid
down in Cement Co. vs. LePage, 147 Mass.,
206, which holds that "a person cannot make
a trade-mark of his own name and thus de-
bar another, having the same name, from
using it in his business if he does so honestly
and without any intention to appropriate
wrongfully the good will of a business al-
ready established by others of the name."
And this is true even though confusion or
inconvenience to the first should incident-
ally result. "But although he may thus use
his name, he cannot resort to any artifices
or do any act calculated to mislead the pub-
lic as to the identity of the business firm or
establishment, or of the articles produced
by them, and thus produce injury to the other
beyond that which results from the similar-
ity of names."
The same rule was laid down in Rogers
case, 54 Conn., 527. The trade name of com-
plainant being the name of an individual, and
for the purposes of this case, the same as
that of defendants', it follows that unless it
appear satisfactory to the court that defend-
ants are guilty of wrongful intent in fact, or
that they have so conducted themselves as
to justify that inference for the inevitable
consequence of the acts complained of, com-
plainant is not entitled to the relief herein
sought.
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fendants' instruments, the so-called warning
on the back thereof, the booklet entitled "A
Sketch of the Chickering family and their
Famous Piano," the use of the design of the
cross of the Legion of Honor, also the vari-
ous advertisements of their several salesmen
and agents (not particularly inspired or ap-
proved by defendants, but such as might
have been fairly anticipated by them as likely
to grow out of their conduct in the premises),
can there be any doubt in the mind of a court
but that defendants deliberately and for the
purpose of appropriating wrongfully the
trade name and good will of complainant,
and not with the intention of using their own
name in a proper way, assumed and herald-
ed to the public a name which, when used
in connection with the piano business, had
no other purpose than to wrongfully bring
to themselves, and deprive complainant of
its property in, the good will and trade of
the public which complainant and its prede-
cessors had been more than eighty years in
accumulating ? There is no doubt in my
mind but that such is the case. It is true
that defendants have conducted themselves
shrewdly and with an attempt to keep with-
in the limits of the law; but courts will strip
off such covering when evidently used as
a veil for the concealment of fraudulent acts
toward the public or toward an individual.
The defendants Chickering are engaged in
a dishonest use of their own name. Such a
use the law will restrain.
Complainant has shown some degree of
negligence in asserting its rights in the prem-
ises, and in a less glaring case of appropri-
ation of the trade name a court might hesi-
tate to grant it temporary relief. I am not
disposed to hold that a delay of a year or two
constitutes such laches as would justify the
court in denying the prayer of complainant's
bill.
The fact that complainant's predecessor,
in the letter of October 31, 1900, to Poppen-
burg, suggests that he correct his advertise-
ment so that it read Chickering Bros, instead
of Chickering & Sons piano, would seem to
indicate at least an indifference to the use
of the term Chickering Bros, by defendants
at that time upon their pianos. While this
apparent acquiescence in such use by de-
fendants is a circumstance to be considered
on this hearing, yet under all the facts of
this case, and standing, as it does, alone, I
do not deem it at all decisive of any material
point in the case.
I deem it conclusively established that com-
plainant's trade name is of great value. It
has been accumulating in value for almost
80 years. It is also beyond question that the
term or name "a Chickering" means a piano
made by complainant or its predecessors, hav-
ing a certain standard of excellence in quality
and action. Does the evidence presented
make a case which would justify the court
in granting a preliminary injunction as
prayed ?
The rule is well established in such cases
that a preliminary restraining order will only
be granted when the right to that relief is
clear and undoubted. If defendants are
guilty of fraud and unfair competition as
charged in the bill, it would seem to consti-
tute a proper case for the issuance of this
drastic writ. According to their own show-
ing their manufacture of pianos is greatly
on the increase, so that both in the matter
of advertising and of pianos placed upon
the market, the injury to complainant's busi-
ness is rapidly developing. What will be
the result at the time of the final termination
of this suit if defendants are allowed to pro-
ceed until then without restraint, may be in
a fair measure anticipated. It may well be
found to be irreparable injury to complain-
ant. It therefore seems to me to be entirely
within the rule of the law in such cases to
grant the prayer of the bill herein, provided
defendants are guilty of unfair and fraudu-
lent competition as charged; and it only re-
mains to examine the facts presented to as-
certain whether they are guilty of such com-
petition.
Briefly state/1, the defendants are neither
descendants of nor successors to Jonas Chick-
PRELIMINARY INJUNCTION GRANTED.
ering, the source of complainant's rights.
Complainant is entitled to and is granted
They are at best remote relatives. So far as
concerns Chickering & Sons, they are strang- a preliminary injunction restraining defend-
ers. The fact that they severally worked for ants and each of them from the use of the said
complainant's predecessor in some capacity name of "Chickeringi Bros." in connection
is without significance on this hearing. Com- with the piano trade, either on their instru-
plainant is for all present purposes in exact- ments or in their advertising matter; from
ly the same position that it would be in were the use in such connection of any name or
Jonas Chickering and his sons living and in designation equivalent thereto; from the use
control of its affairs. Defendants are not in of the word "Chickering" alone in such con-
any manner charged with maintaining the
family name or reputation, in connection with nection ; from the use of the cross of the
the piano trade. They had a right to go into Legion of Honor in such connection ; from in
that business and enjoy the full benefit of any manner pretending that their pianos are
their own effort and skill, under their own "Chickering" pianos; from the use of the
names, provided they did not do so with the word "Chickering" in any corporate name in
intent or in such a manner as to work a connection with the piano trade; and from
fraud upon complainant or the public. But stenciling or in any manner placing such
the use of their own name did not involve name on their pianos, without in each in-
the right to adopt a firm name or organize stance of the use of said name "Chickering"
a corporation so similar to complainant in displaying in connection therewith, plainly
name as to mislead persons of ordinary in- and in a prominent manner, a statement that
telligence and caution. There can be no defendants' pianos are in no way connected
doubt from the record that for, all practical with the Chickering & Sons pianos, and that
purposes of the piano trade, Chickering &
Sons and Chickering Bros, pass for one and defendants' pianos are not the "original
Chickering" pianos, or some declaration to
the same name.
that effect readily discoverable by all persons
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Taking this similarity of corporate names dealing with defendants or with the defend-
in connection with the reiterated statement on ants' pianos.
defendants' piano itself and on most of de-
Complainant's counsel may prepare the
fendants' advertising matter, that theirs is
draft
of an order in accordance with the fore-
"the onlv piano made by a Chickering," to-
gether with the manner of lettering upon de- going.