Lichtenstein v. Mellis Bros.

8 Or. 464

• Court: Oregon Supreme Court
• Decided: January 15, 1880
• Status: Published

Opinion

By the Court,

Boise, J.:

It is conceded that the first ground of demurrer, to wit, that the court has not jurisdiction of the case, is not tenable; and the appellants now rely on the second ground of demurrer, to wit, that the complaint does not state facts sufficient to constitute a cause of action. In determining this cause of demurrer, we will first consider the matter as to whether or not the letters and words “I XL General Merchandise Auction Store,” which constitute the trademark of the plaintiff, are so nearly identical with or similar to the words and letters used by defendants, to wit, “Great I X L Auction Co.,” as to be likely to mislead the public, and cause the one to be taken for the other, and thereby draw the customers of the appellant to the store of the respondents, and thereby injure the business of the appellant. We do not think the letters and words used by the parties are so nearly identical in appearance or meaning as to mislead the public. The words used by the appellant, “ General Merchandise Auction Store,” suggest that the store contains a general assortment of merchandise, and that goods are there sold at auction. The words “ Great Auction Co.” would suggest that the Co. sold goods and other property, such as lands and such other things as are embraced under the .head of general merchandise. All the words are different in these respective signs except the word auction, and this is a word that is generally used over all places where auctions are conducted, and can not be appropriated by any one as a trade-mark without being used with other words.

It is claimed that the letters “IXL” could not be used by the respondent after being appropriated by the appellant. These letters have been used by many manufacturers to denote their wares, as on cutlery and on bitters, and were not the invention of the plaintiffs, but taken by them from former proprietors and inventors thereof, and do not by themselves make a trade-mark any more than the word excelsior, which is often used with other words to make a trade-mark or sign. And in this case, the appellants have recorded all the words above with these letters as their trade-mark, and can not now claim these letters alone con-statute it. We think the signs of the parties are not sufficiently similar to warrant the court in interfering to restrain the respondents, or to entitle the appellant to damage.

The judgment of the circuit court will be affirmed, with costs.