I concur in the decision, but not in all the conclusions of the majority opinion.
Unless the trial court was justified in finding that the defendants were guilty of fraudulent attempt to pirate the business and patronage of the plaintiff, from the mere fact that they attempted to appropriate to their own use the trade name under which plaintiff was doing business, I fail to see wherein the findings are supported by the evidence.
That there was a deliberate plan and purpose of the defendant Schryock to deprive the plaintiff of the use and benefit of the name "San Diego Conservatory of Music," and, in so far as possible, by incorporating his own business under the same name, obtain the exclusive use of such name, I think there is no doubt. But I fail to find any evidence in the record that he intended or attempted or used any means calculated to deceive the public or patrons of the plaintiff *Page 307 into patronizing his business under the belief that they were patronizing the plaintiff, other than by the bare use of the same trade name. And there is certainly no evidence, if such was his purpose, that he succeeded in doing this with a single individual. The only publicity given the defendants' business after incorporating under the same name, "San Diego Conservatory of Music," so far as appears in evidence, was certain advertisements in the San Diego papers in which he announces the "San Diego Conservatory of Music (Incorporated)," with the name of "B. Roscoe Schryock, Director," displayed and emphasized in black-faced type. This use and display of defendant Schryock's name is calculated to distinguish his conservatory of music from the one which it is claimed owes its identity and standing to the name and personality of Chesley Mills, the plaintiff in this action. From the obvious attitude of these two rival musicians toward each other, it is probable that the last thing either of them would desire would be to have any of their patrons think he was serving the other's brand of music. If the defendant Schryock had located his home and business in the immediate vicinity of the plaintiff's school of music for the first time in connection with the incorporating under the same name, it might be argued from that circumstance that he chose the location with a view to confusing the public as to the identity of the two schools; but the record discloses that Schryock had been on the ground and teaching music there nearly, if not quite, as long as had plaintiff, and in the neighborhood of two years before he incorporated under the same name that plaintiff was using.
It seems clear from the settled rule in this state that the mere appropriation of a geographical name which has previously been adopted and is in use by a rival in business affords no ground of action unless accompanied by acts of unfair competition calculated to deceive the public into patronizing the usurping concern under a mistake as to identity. The name "San Diego Conservatory of Music" is admittedly not one that is subject to exclusive appropriation as a trade name, and the rule applicable to such trade designations is laid down in the leading case of Weinstock, Lubin Co. v. Marks, 109 Cal. 529, [50 Am. St. Rep. 57, 30 L. R. A. 182, 42 P. 142], in the following words of the syllabus: "Although there can be no proprietary right in a *Page 308 trade name which is not the subject of a trademark, yet it is a fraud on a person who has established and carried it on under a given name that some other person should use the same name in such a way as to induce persons to deal with him in the belief that they are dealing with one who has given a reputation to the name." As is said in Banzhaf v. Chase, 150 Cal. 180, [88 P. 704], "the gist of the action is not the appropriation and use of another's trademark, but is based upon the fraudulent injury to and appropriation of another's trade." If in this case the defendants' acts were confined to the mere appropriation of the trade name used by plaintiff, without acts calculated to mislead those desiring to patronize the plaintiff into patronizing the defendant through a mistake in identity, no cause of action is shown.
I am not sufficiently satisfied, however, to justify dissenting from a majority of the court, that the mere fact of the appropriation of the name of plaintiff's business to a rival business, to be carried on in the same immediate vicinity, may not in itself sufficiently establish a condition calculated to mislead plaintiff's patrons, and justify a finding of the trial court to that effect, beyond reversal on appeal for want of evidence. The attempt to deprive plaintiff of the benefit of the trade name under which in good faith he had established his business was morally indefensible, and I do not know that the appellate court should go out of its way to strain a legal point in defendants' favor.
I cannot, however, agree with the conclusions of the opinion that there is evidence of intention on the part of defendants to mislead the public as to the separate identity of the two music concerns, or that they have been guilty of anything more than a constructive fraud.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 28, 1920, and the following opinion then rendered thereon:
THE COURT. — In denying the petition for a hearing in this court after decision by the district court of appeal of the second appellate district, division two, it seems proper to note that by the complaint the alleged damage was confined to loss of patronage in that the use of its name by *Page 309 defendants has actually misled, and does still mislead, the public to patronize defendants in the belief that they are patronizing the plaintiff, and that the reputation of the plaintiff's business has been greatly injured and damaged. The only evidence in fact introduced on the subject of actual damage related to an entirely different matter. As the pleadings stood the evidence was inadmissible, and the finding of actual damage is without support in the evidence.
The petition for hearing in this court is denied.
All the Justices concurred.