The plaintiff, a Massachusetts corporation, has carried on business since January, 1918, in its corporate name, the Hub Dress Manufacturing Company. In July, 1919, the defendants adopted the name Hub Novelty Dress Company. The ■ plaintiff in this suit in equity prays that the defendants be restrained from conducting their business under the name “Hub Novelty Dress Company” or “any other name containing both the words 'Hub’ and 'Dress.’” The defendants demurred, but went, to trial on the merits. This was a waiver of the right to be heard on the demurrer. Bauer v. International Waste Co. 201 Mass. 197, 200, 201.
The parties are manufacturers of women’s dresses, selling their goods only at wholesale. The plaintiff sells throughout the United States, the defendants in New England, and a large part of the business of both is in Boston. The dresses sold by the plaintiff are all of staple cotton material such as prints and calicoes, which can be washed. The defendants make and sell silk or woollen dresses which are rarely of plain or staple texture. They are known in the trade as novelty goods and are not what are called wash dresses. The judge found that the plaintiff and the defendants were not competitors and a decree was entered dismissing the plaintiff’s bill.
While it is the duty of this court in a suit in equity where the evidence is reported to examine carefully the evidence and reach its own decision on the facts, yet the finding of the trial court, where he has the opportunity to see the witnesses, will not be reversed unless plainly wrong. Jennings v. Demmon, 194 Mass. 108. From a careful examination of the evidence we are satisfied that the finding was right, and it must stand.
“The plaintiff is entitled to relief only on the ground of unfair trade competition or interference with his established rights. . . . There can be no recovery unless it appears that there has been a wrongful appropriation by the defendants of trade which belonged to the plaintiff. . . . Actual or probable deception of the public to the harm of the plaintiff is the basis of the action. There can be no unfair competition unless the plaintiff is in fact a rival for the trade which the defendants secure.” Kaufman v. Kaufman, 223 Mass. 104, 106, 107. This principle of law is controlling in the case at bar.
*284The defendants did not attempt to palm off their goods as those of the plaintiff. They did not attempt to appropriate the plaintiff’s business by using the name “Hub Novelty Dress Company.” Cotton dresses such as were made by the plaintiff were not made by the defendants. Their product was of a material well known in the trade and entirely different from that used by the plaintiff. Under such conditions it is improbable that the - customers of the plaintiff in the exercise of ordinary care, could : be deceived to the plaintiff’s harm, or could confuse the name of ! one concern with the other. The business of the parties was not the same and they were not in fact competitors. See C. A. Briggs Co. v. National Wafer Co. 215 Mass. 100. Unless the dealers who bought at wholesale were likely to be deceived, or the defendants attempted to profit by the plaintiff’s reputation by taking its business, by -unfair means, the plaintiff cannot have relief. As was said in Viano v. Baccigalupo, 183 Mass. 160, 163, “Is the defendant, as a question of fact, passing off its goods as the plaintiff’s goods, or passing itself off as the plaintiff?” It has been found by the judge who heard the evidence that the name adopted by the defendants is not likely to mislead those with whom the parties deal and among whom they look for business. This finding is fully warranted by the evidence. The parties were not rivals, and the defendants did not attempt to pass off their goods as the plaintiff’s or to deceive the public. The decree for the defendants must be affirmed, with costs.
So ordered.