(dissenting)— We dissent. A corporation cannot adopt words purely descriptive of an already existing business, and thus acquire an exclusive right to their use. Elgin Butter Co. v. Elgin Creamery Co., 155 Ill. 127, 40 N. E. 616; Industrial Mutual Deposit Co. v. Central Mutual Deposit Co., 112 Ky. 937, 66 S. W. 1032. The diamond drill was being used when the respondent was incorporated, but the diamond drill contracting business did not exist as a well recognized form of contracting business. As far as it existed, it was purely incidental to the manufacture and sale of diamond drills by one or two corporations whose names did not indicate that they were engaged in the diamond drill contracting business. It, then, is true that the respondent, through its advertising, its efforts, and its conduct of its business, has developed a contracting business for the drilling by diamond drills where no such business had theretofore existed on any such scale. It is true that the name under which it operated is composed of words which are merely descriptive of the business in which it is engaged, that it invented no new name, created no combination of let*92ters into a hitherto unknown word with which to describe this new business in which it embarked; yet, through its years of operation, it established in these four words which, when originally combined, were descriptive of the business, a secondary meaning, so that persons interested in securing the services of contractors to drill with diamond drills, when they saw the words “Diamond Drill Contracting Company,” knew that the respondent was thereby intended, and that those words stood for and represented the respondent and its business. 38 Cyc. 765; Nims, Unfair Competition and Trade-Marks (2d ed.), p. 70.
These words were, as we have indicated, merely descriptive or generic words, and probably could not have been protected under the trade-mark law, but are entitled to protection, if, through their use, they had acquired a secondary meaning. In other words, these descriptive words have become cemented into a trade-name, and have solidified into a definite and determined combination the name of the respondent, which identifies the respondent and its business and the use of which name will be protected.
It is to be remembered that we have not here under consideration a trade-mark infringement. Northwestern Knitting Co. v. Garon, 112 Minn. 321, 128 N. W. 288. We must concede that the respondent has no right, and it is claiming none, to the exclusive possession of the field of diamond drill contracting. That field is open to whoever has a diamond drill and the desire to contract for its operation; but the respondent is entitled to use exclusively those words which it assembled and used to designate a new business which it had placed in the field of operation. The respondent has taken and opened a new field of industry and given to it a name, which name in its use has become *93of value, and now constitutes one of its principal assets, and although that field may he tilled by others, they cannot do so under the name which has become a designation of respondent, though at first it described a business. By adding the word “International” to respondent’s name, the appellant does not so obliterate the secondary meaning that is attached to those words as to protect the respondent’s right in that name.
The appellant contends that, in any event, the respondent has shown no such injury by the appropriation of its name as to entitle it to the relief sought. It may be that the evidence does not disclose that there has been a great deal of confusion in the affairs of respondent by reason of the appellant’s use of the name; but it is not necessary that there should be such a showing in order for respondent to maintain its right to its trade-name. It is sufficient to show that probable injury would result if it .is shown that actual interference has taken place, that is sufficient injury to entitle it to an injunction.
The argument of appellant that this case presents no question of a trade-name is stated as follows:
“When the respondent adopted the descriptive words they were not descriptive of the respondent’s business alone, for others were in the same business and remain so to this day. The doctrine of secondary meaning does not apply to a name under which an individual or association does business where the words composing the name are merely descriptive of the business. ‘The entire doctrine of trade names presupposes that the public have no need to use the word in referring to the article to which it is applied. Thus the public has need of the word ‘Ivory’ to describe elephants ’ tusks; it has no need of the word ‘Ivory’ to describe soap.’ Ninas on Unfair Competition, 67 Second Edition. So the name which through use may ac*94quire a secondary meaning, while it may be a word in common nse and publici juris as a part of the English language, must not be a word necessarily descriptive of the article or business to which it is applied. As suggested by Mr. Nims no one could acquire the exclusive right to the word ivory as applied to elephants ’ tusks, because necessarily descriptive, yet the right to use the same word in connection with soap may be acquired because the word was not, until used by the makers of Ivory Soap, in any way descriptive of soap. There can be no secondary meaning of a word until that word has been so used in connection with an article or business that in the understanding of the public the word no longer has its usual significance but is understood to mean the goods or business of the complainant. Its use then becomes a representation that the article or business with which it is connected is the article or business of the complainant.”
Throughout the appellant’s brief, it recurs to the fact that, when the respondent adopted the descriptive words, they were not descriptive of the respondent’s business alone for the reason that there were others in the same business. This is best exemplified by the concluding paragraph of appellant’s reply brief:
<i;That the incorporation of respondent under the name assumed by it did not determine its right to the exclusive use of that name; that right depended, not upon the secretary having granted it a charter under that name, but upon whether the words or combination of words composing its name were such that it could lawfully appropriate them to its exclusive use, as having invented or coined them, or being the first to use them. That it may have been the first corporation to make use of them in a corporate name gives no exclusive right. If they were in common use, they had become free to all. ’ ’
With these contentions, we must agree as a matter of law; but, as we have already shown, the respondent was not only the first to use' the name, but was the *95first to actually engage in the diamond drill contracting business as a business. Although the case of Groceteria Stores Co. v. Tibbett, 94 Wash. 99, 162 Pac. 54, L. R. A. 1917C 955, arose under the trademark statute, it presents a similarity to the instant case, in that it dealt with the establishment of a new business, or a new form of an old business, but to describe that new business a new and fictitious word was coined.
The offense of the appellant does not lie in the use of the common words employed to describe its business, but in the adoption of a combination of words which will tend to the confusion of respondent’s business. A complete answer to the argument of the majority is to be found in the statute. There is no room for construction. The question is not whether, in the opinion of the judges, the names may be similar or dissimilar, but whether the name adopted so nearly resembles “the name of such other corporation as to be misleading. ’ ’ This result is evident to the mind and is confirmed by the proof. If the statute will not protect a business unless it has coined some new word as descriptive of its business, or as a name to designate and distinguish it as a corporation, it is a vain and useless thing. Respondent, having virtually created a business which did not exist before, is entitled to the use of the particular name which it applied to that business to the exclusion of other corporations who have the right to engage in the same business, but not under the name containing the words “Diamond Drill Contracting Company.”