Hallett v. Cumston

110 Mass. 29

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1872
• Status: Published

Opinion

Gray, J.

By the agreement made between the plaintiff and William Cumston in 1865, under which the business was after-wards carried on until Cumston’s death in 1870, the partnership previously existing between them was dissolved, the plaintiff Ceased to be a partner or to have any interest in the business, except the right to receive one third of the net profits by way of compensation for his services, the business became the business of Cumston alone, and it was expressly agreed that Cumston should “ have the light, during the term of this agreement, to use the name of said Hallett jointly with his own name, in conducting his said business.” The plaintiff, having no interest in the business, had no right in any trade-mark used in it. He cannot therefore maintain his bill to restrain the use of the name of Hallett & Cumston as a trade-mark. Bowman v. Floyd, 3 Allen, 76. Rogers v. Taintor, 97 Mass. 291. Hall v. Barrows, 4 De G., J. & S. 150.

The agreement terminated, indeed, with the death of Cumston, and his representatives had no right afterwards to use the plaintiff’s name without his written consent, and might be restrained by injunction from so doing. Gen. Sts. c. 56, §§ 3, 4. Bowman v. Floyd, 3 Allen, 76. But they had a right, acting in good faith, to use the name of any other person with his consent, whether it was or was not the same as the plaintiff’s. Emerson v. Badger, 101 Mass. 82. This bill cannot be maintained for an unlawful use of the plaintiff’s name, for want of any distinct and sufficient allegation that the defendant used the name of Hallett with intent to represent it to be the name of the plaintiff, and thereby to defraud and injure him. Demurrer sustained.