June 17, 1926. The opinion of the Court was delivered by The respondent was incorporated in 1906, and is engaged in selling fertilizers all over the state. It is commonly known to the trade as "Planters' Fertilizer Company," and has built up a large business. It uses the trade name "Planters" on all of its products, which name is registered with the secretary of state. The use of this name has been *Page 290 very beneficial to respondent's business, according to the testimony.
The appellant, with an almost similar name, was incorporated in 1923, and the vice president of the appellant corporation had been the salesman of respondent corporation for several years, building up his trade by the use of the commonly known name of "Planters' Fertilizer Company," and selling a product trade-marked "Planters."
It appears that after the launching of the second company the mail sometimes became confused, and that respondent was in the habit of receiving mail addressed to "Planters' Fertilizer Company, Charleston, S.C." by which name it was commonly known to the trade.
The respondent introduced evidence showing that there had been confusion in the trade as to whether the purchaser was buying goods of the respondent or of the appellant.
The respondent brought this action to enjoin the appellant from using the name "Planters' Fertilizer Company," alleging that the use of such name was calculated to produce confusion in their business, to create uncertainty and mistake as to identity, and also to produce unfair competition in business, in that the public was induced to buy goods of the appellant, thinking they were buying goods of the respondent.
The master in his report recommended the refusal of the injunction, and on exceptions to the master's report the circuit Judge overruled the report of the master and allowed the injunction.
Let the report of the master and the decree be reported.
From the decree the appellant appeals upon various exceptions, which allege error.
It is not necessary to consider these exceptions seriatim, since the question to be decided is, Should the injunction issue?
The testimony amply sustained the allegations of the complaint, so that if the allegations of the complaint entitle *Page 291 the respondent to the relief demanded, the testimony sustains these allegations.
A Court of equity has jurisdiction to enjoin the use of the same name by another corporation, or the use of a name so nearly similar as to be misleading, thereby injuring its business. American Order v. Merrill,151 Mass. 558; 24 N.E., 918; 8 L.R.A., 320; National Circlev. Nat. Order (C.C.A.,) 270 F., 723; Peck Bros. Co. v.Peck Bros. Co., 113 F., 291; 51 C.C.A., 251; 62 L.R.A., 81; 7 R.C.L., 134; Higgins Co., v. Higgins 144 N.Y., 462;39 N.E., 490; 27 L.R.A., 42; 43 Am. St. Rep. 769; TrustCo. v. Trust Co. (C.C.) 123 F., 534; U.S. Light Co. v. U.S. Light Co. (C.C.) 181 F., 182; Celluloid Co. v. CelloniteCo. (C.C.) 32 F., 94.
The case of Telephone Co. v. Telephone Co., 63 S.C. 313;41 S.E., 322; relied on by the appellant, is not in point, for it merely decides that a corporation cannot acquire an exclusive right to the use of the name of a town or place.
"A cause of action for the wrongful use of a trade name cannot be protected as a trade-mark. Cement Co. v. CementCo., (C.C.) 44 F., 277; 10 L.R.A., 833.
The facts in this case certainly warranted the issuance of an injunction. Grand Lodge, K.P., v. K.P.,174 Ala. 395; 56 So. 963; Society v. Society,46 App. Div. 568; 62 N.Y.S., 355; 14 C.J., 328.
In Sartor v. Schaden, 125 Iowa, 696; 101 N.W. 511; the Court says:
"A cause of action for the wrongful use of a trade name * * * arises where there is a confusion of goods put upon the market by the respective parties."
In Insurance Co. v. Insurance Co., 138 Iowa, 228;112 N.W., 232; 114 N.W., 609; L.R.A., (N.S.,) 625; 128 Am. St. Rep., 189, the Court says:
"What degree of resemblance * * * is sufficient to warrant the interference of a Court in cases of this kind is not capable of exact definition. It is, and must be, from the *Page 292 very nature of the case, mainly a question of fact, to be determined by the circumstances appearing in each particular case. In general, it may be said that, if the resemblance is such as to mislead purchasers or those doing business with the person or corporation using the name, who are acting with ordinary caution, this is sufficient."
In note to L.R.A., 1915B, P., 1074, it said:
"But it is necessary that an actual intent to deceive be shown to entitle one organization to protection against the use of a similar name by another, it being sufficient merely that plaintiff has a superior right to the use of its name, and that the name adopted by defendant is so similar that plaintiff's business and the purposes for which it was organized will be injuriously affected by its continued use."
In 14 C.J., 328, it is said:
"If the name wrongfully used by the defendant is the same as that of the complainant, or so similar thereto as to be calculated to deceive, the motive of a defendant is not material in a suit for an injunction, for the act is unlawful and must, if necessary, be presumed to have been done with the intent to cause the results which naturally flow from it,"
The judgment of this Court is that the judgment of the circuit Court be affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS, BLEASE and STABLER concur.