(1) Trade Marks and Trade-Names. Injunctions. Right of Partnership to Name of Partner. The right of a copartnership to use the name of one of the copartners as a trade-mark or trade-name is co-extensive with the right of the individual copartner.
(2) Trade-Marks and Trade-Names. Imitation. Where the parties have an equal right under the law to the use of the same name for their products, unless the signs, labels, and advertisements of one are such, independently of the name, as to deceive the public into the belief that they are buying the goods of one when they are buying the goods of the other, there is no ground of complaint.
(3) Imitation. Right to Surname as a Trade-Mark or Name. Where the signs, labels, and advertisements of a respondent are quite unlike those of the complainant in all respects except the use of the surname, which both parties are equally entitled to use, the complainant cannot object because of the prominence given to such surname.
MATTESON, C.J.
We do not think that the circumstances relied on by the complainant as disproving the partnership between the respondents are sufficiently convincing to outweigh the positive testimony of the respondents and other corroboratory evidence to that fact.
No person can acquire a right to use his surname as a trade-mark or trade-name to the exclusion of others bearing the same surname. Unless, therefore, the signs, labels, and other advertisements of the respondents are such, independently of the use of the name "Harson," as to deceive the public into the belief that they are buying the goods of the complainant when they are buying the goods of the respondents, the complainant has no ground of complaint. The principal point of resemblance between the signs, labels, and advertisements of the complainant and those of the respondents consists in the prominence given to the name "Harson." In view of the fact that the respondent Harson has the right to use that name, we do not think that the complainant is entitled to complain of the mere prominence given to it, the signs, labels, and advertisements being quite unlike in other respects.
Though the testimony shows that in some instances persons have confounded the places of business of the complainant and the respondents, the confusion appears to have been due rather to the use of the name "Harson" than to any resemblance between the signs, labels, and advertisements.
Our conclusion is, therefore, that the bill should be dismissed.