Deister Concentrator Co. v. Deister Machine Co.

On Petition for Rehearing.

Moran, P. J.

Appellant in its brief on petition for rehearing insists that the court held in its original opinion, and erroneously so, that at the time the trial court denied the relief sought by it and rendered its decision appellees *425were then using the necessary precaution to distinguish the machinery made and sold by them from the machinery made and sold by appellant, and that this was not sufficient; that if the necessary precaution had not been taken before suit was filed, appellant was entitled to the relief sought, and, further, that if appellant was not entitled to injunctive relief at the time the lower court reached its decision by reason of additional precaution having been taken subsequent to the filing of the complaint, and prior to the decision of the lower court, that this would not preclude appellant from recovering damages for the wrong suffered theretofore.

The complaint alleges generally that appellant wa¡ damaged by reason of the conduct of appellees, but injunctive relief only is demanded thereby, and under “Points and Authorities” in appellant’s brief upon the merits of the cause there is no insistence for damages or for an accounting against appellees. Neither of the five propositions relied upon in the brief are addressed to the question of damages in any manner. There is nothing in appellant’s brief on the merits to show that there was any proof offered upon the theory that appellant suffered damages or that an accounting should be had as to profits, if any, that were realized by appellees by reason of using the name they did in disposing of the machinery which they manufactured and sold. It was not intended to hold by the original opinion, nor does it hold, that at the time suit was filed by appellant as against appellees that appellees were not then using the necessary precaution to distinguish the machinery made and sold by them from that made and sold by appellant. From the special finding of facts and conclusions of law announced by the court thereon, it is evident that the decision reached in the court' below was on the theory that .appellees were taking the necessary precaution at the time suit was filed to distinguish the machinery made and sold by them, and in putting the same *426on the market, from that made and sold hy appellant, and not upon the steps taken hy appellees subsequent to the filing of the suit; nor was the judgment affirmed upon the additional precautions that were taken subsequent to the filing of the suit and before the decision was reached by the trial court.

After suit was brought, however, additional precaution was taken by appellees, as disclosed by the special finding of facts, which, when taken into consideration with the precaution that had been taken before the filing of the suit, clearly informed the public that the machinery manufactured and sold by appellees was different from that manufactured and sold by appellant, and that such additional precaution was proper, and to the end that doubt was removed as to the duty that was owing from appellees to appellant and the public. The original opinion is not subject to the infirmity contended for by appellant in this respect.

Each question raised in the petition for rehearing has been carefully considered, and it is the judgment of the court that a correct conclusion was reached in the original opinion, to which we now adhere. The petition for rehearing is overruled.

Note.—Reported in 112 N. E. 906, 114 N. E. 485. Unfair competition: (a) fraudulent intent as a necessary element, 3 Ann. Cas. 32; (b) use of personal or corporate name, 2 Ann. Cas. 415,16 Ann. Cas. 596. Trade-marks and trade-names, similarity of name as constituting infringement, Ann. Cas. 1915B 327. Right of one selling business and good will to use similar name in competing business, 19 L. R. A. (N. S.) 765. See under (1, 2) 38 Cyc 809, 810, 817, 818; (3) 38 Cyc 756; (4) 88 Cyc 784; (5) 38 Cyc 777; (7) 38 Cyc 779.