Unfair Competition. Equity Jurisdiction, To restrain unfair competition. Res Judicata.
In a suit in equity to restrain the defendant from using, on goods sold by him, a label reasonably to be mistaken for a label used by the plaintiff and recorded by him under G.L.c. 110, § 8, the issue, whether the two labels were so nearly alike that the defendant's label would be likely to deceive the public, was one of fact; and a finding in the plaintiff's favor by the trial judge, not appearing to be clearly wrong or contrary to law, could not be disturbed upon an appeal by the defendant without a report of the evidence. It appeared in the suit in equity above described that there had been previous suits in equity between the parties concerning their rights to the use of their labels, in which findings had been made and decrees entered in favor of the present plaintiff; and that no appeal had been taken from those decrees. Held, that the right of the present plaintiff to the use of his label was res judicata and could not be questioned by the defendant in the present suit. A final decree was entered in the suit in equity above described enjoining the defendant from using his label or a label similar to that of the plaintiff. The defendant contended that the effect of the decree was to deny to him the use of a certain word in his label which he had used in his trade name for a long time. Held, that such contention was without merit: the defendant was not prevented from using that word so long as he did not use it in a label so designed and worded as to be mistaken for the plaintiff's label.
WAIT, J.
This is a bill in equity to restrain the defendant from the use of a label reasonably to be mistaken for a label recorded by the plaintiff under G.L.c. 110, § 8. The fundamental issues in such a proceeding are whether the plaintiff has the right which he asserts, and whether the label of the defendant so nearly resembles the label recorded that it is likely to deceive as a counterfeit or imitation of the plaintiff's. The latter issue is one of fact. Where, as here, the evidence is not reported, the finding of the trial judge will not be disturbed unless clearly wrong or contrary to law. Sullivan v. Roche, 257 Mass. 166. Corkum v. Clark, 263 Mass. 378, 382.
The right of the plaintiff to the label he set out, as against the defendant, had been decided in earlier proceedings between them. Neither party appealed from the decree then entered. The right was adjudicated. It was not open to the defendant to challenge it. Nor could he thereafter question the decision that the label used by him and denounced by the decree was an infringement. He modified it; and this suit resulted. It was open to him to show, if he could, that the modified label was free from the characteristics declared to be wrongful by the earlier decree. He has failed. He contends that the effect of the decree is to deny him the use of the word "Victory," which he has long used in his trade name. In this he is wrong. No right to that word was given to the plaintiff. The defendant's use of it as he pleases is not affected as long as he does not use it in a label so designed and worded as to be mistaken for the label of the plaintiff. His difficulty is that a finding of fact by a competent tribunal has again established that he is using a label which is a wrongful invasion of the right of the plaintiff. We cannot disturb that finding.
Decree affirmed with costs.