[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 408 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 409 Appeal was taken from an order granting a motion to dismiss the amended bill of complaint filed by The Surf Club, a corporation not for profit, against Tatem Surf Club, Inc., a corporation for profit, containing a prayer for a decree restraining the use by the latter of "the words 'Surf Club' or the word 'Surf' as applied to a social or purportedly social organization. . . ."
Allegations which plaintiff proposed to prove as a foundation for the relief sought were: that it had been in existence and operation as an exclusive social club for many years and owned and maintained various *Page 410 facilities for the pleasure, entertainment and comfort of its members; that it had a proprietary interest in the words "surf club" by which it had long been known; and that membership in the association carried with it great prestige. It was averred that the defendant was chartered in 1940 and was engaged in maintaining facilities of a type similar to those of the plaintiff which are available to the public for a charge and to the patrons of The Tatem Hotel.
It was alleged that the use by the defendant of the words "surf club," "tends to produce confusion in the minds of persons having business dealings with the plaintiff and in the minds of the general public, and tends to and does identify the plaintiff and its members with activities . . . and persons not actually connected with the plaintiff . . . and such confusion tends to and does disparage and destroy the prestige connected with the membership in the plaintiff . . . ." Succinctly stated, the damage claimed is the loss of prestige by reason of the confusion which the use of the words "surf club" by defendant causes or tends to cause. It cannot be deducted from the allegations that the parties were competitors, one being purposely exclusive, the other seeking the patronage of the public.
The primary question is the right of the defendant to use the word "surf" which is variously referred to as generic, geographic and descriptive. The Court recognized in Addison v. Hooks, 91 Fla. 337, 107 So. 623, cited by both parties in their briefs, the general rule that geographic names are considered common property and may not in ordinary circumstances be appropriated as trade names. The case dealt with the use of the name of a city in designating a certain *Page 411 manufacturing business located in it. In the same opinion a qualification to the rule was recognized, that is, that such a name may acquire a secondary significance or meaning entitling the user to protection if the use has been so connected with a patricular type or kind of business as to have come to denote not only the place and the name of the manufacturer but also the excellence of a product. It is the contention of the appellant that by the long use of the words in its title they have attained a secondary meaning under the exception to the rule and that, therefore, they are entitled to a decree of the court enjoining the use of the words by the defendant.
We have the impression from an examination of many authorities that the purpose of the exception is the protection of the public. If a corporation has so long used words of geographic definition that they have become identified with a product of fine quality later use of the same or a similar title might result in there being foisted on the public goods of an inferior quality.
The generic word "surf" is so comprehensive as to designate any place where the waves break on the shore and the word "club" is as broad in its use or application. Under the general rule that we have stated we are of the opinion that the plaintiff could not have been protected in the use of these words.
We have met much difficulty in our search for a decision involving facts resembling those stated in the present bill. There are numerous opinions dealing with the exception where business corporations are involved but here, of course, the controversy exists between a social organization purposely exclusive and not catering to the public and one offering like advantages *Page 412 but openly seeking public patronage. It is fairly clear that the basis for the concept "secondary meaning" was the prevention of deception of the public but in the cases we have studied involving social or recreational organizations that factor is not emphasized and the principal element seems to be the effect on the prior user of the adoption of a similar name by a newer association of the same character. Benevolent P.O.E. v. Improved Benev. P.O.E., 205 N.Y. 459, 98 N.E. 756, L.R.A. 1915B, 1074, Ann. Cas. 1913E, 639.
When it is considered that the word "surf" could be used to describe numberless miles of beaches and the word "club" countless associations of great variety, it seems to us that joining with them the article "the" could not, regardless of the length of the use, invoke the general rule. These generic words immediately suggest recreational and social advantages available at a beach resort and the plaintiff did not have the pre-emptive right to employ them as title. Moreover, when the defendant used as a prefix the proper name "Tatem" it did all that could be expected of it to distinguish its activities from those of the plaintiff and this in itself created a dissimilarity which should preclude any confusion which would culminate in injury to any of the rights of the plaintiff.
In fine, we have the conviction that the words are descriptive of the location of both the plaintiff and the defendant and of the activities of the litigants also, therefore, the one may not employ them to the exclusion of the other. (See Restatement of the Law of Torts, American Law Institute, page 579.) It is our view also that had the plaintiff the right to their use it was not entitled to injunction against the defendant *Page 413 in view of the incorporation in its title of the proper name.
The decree is affirmed.
BROWN, C. J., TERRELL, and CHAPMAN, JJ., concur.
ON PETITION FOR REHEARING