Southern Oxygen Co. v. Southern Oxygen Supply Co.

107 S.E.2d 647, 214 Ga. 801, 1959 Ga. LEXIS 350

• Court: Supreme Court of Georgia
• Decided: March 6, 1959
• Docket: 20349
• Status: Published

Opinion

Duckworth, Chief Justice.

Southern Oxygen Supply Company prayed for an interlocutory and permanent injunction to prevent Southern Oxygen Company from engaging in unfair trade practices in using the name “Southern Oxygen Company” in the Atlanta area, and by cross-action the defendant prayed for an injunction to prevent the petitioner from infringing its trademark “Southern Oxygen,” and using the name “Southern Oxygen Supply Company.” At the interlocutory hearing, there was evidence showing that the defendant petitioned the Secretary of State in 1955 for a certificate to engage in business in Georgia, and that it had never paid income or other taxes in Georgia before 1955. The evidence showed that the plaintiff was incorporated in Georgia in 1951, and has done business here continuously since then. There was also evidence that, when prospective customers of the plaintiff telephoned the defendant intending to telephone the plaintiff, they were advised by the defendant that they were talking to the plaintiff. This evidence alone was sufficient to authorize the interlocutory judgment now under review, which restrained the defendant as prayed and denied the defendant’s prayer for an injunction against the plaintiff. Saunders System-Atlanta Co. v. Drive It Yourself Co. of Ga., 158 Ga. 1 (123 S. E. 132); Log Cabin Steak Co. v. Burton, 212 Ga. 648 (94 S. E. 2d 694), and cases cited therein.

Argued February 9, 1959 Decided March 6, 1959 Rehearing denied March 17, 1959. Calhoun ■& Calhoun, for plaintiff in error. Zachary & Hunter, contra.

Judgment affirmed.

All the Justices concur.