
    No. 25
    FEERER, Inc. v. KLIVANS et
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1091.
    Decided Nov. 6, 1925
    1206. UNFAIR COMPETITION — Where two parties have same right to use a trade name in different lines of business and one party innovates a department with the same stock as the other party under same trade name, former is not guilty of unfair competition.
    350. DAMNUM ABSQUE INJURIA — The loss, if any, resulting to merchant by advent of a similar stock of goods into other merchant’s stock, from confusion of purchasing public by continued and honest use of such trade name is damnum absque injuria.
   WASHBURN, J.

Two corporations, the Kay Clothing Co. and the Kay Jewelry Co. carried on business in Akron practically opposite each other. The word “Kay” had no relation to the names of any parties but was merely a trade name. Both stores, however, were owned by the same parties.

In 1921 both companies became financially embarrassed and filed petitions in bankruptcy. The jewelry store was sold to Martin Feerer and the clothing store to Bert Klivans by the trustee in bankruptcy. In neither of the sales did the trustee undertake to sell the name or good will of the bankrupt.

Attorneys — Slabaugh, Young, Seiberling, Huber & Guinther, and H. B. Harris, for Feerer; Rockwell & Grant and Ben W. Holub for Klivans; all of Akron.

Both Feerer and Klivans permitted to remain in front of their stores the same electric signs which formerly advertised the business conducted therein; and in both of these signs the word “Kay” was prominent. Each spent large sums of money for the advertising of his business and in this advertising the word “Kay” w'as prominently displayed.

Before this action was commenced, Klivans concluded to install in his clothing store a jewelry department. Feerer learning of this fact and before Klivans began to sell jewelry, brought his action in the Summit Common Pleas. After decision therein, Klivans proceeded to sell jewelry in his jewelry department. Klivans also advertised that he was in no way connected with any other firm of the same name; and testified that he proposed to distinguish his business from that of Feerer as much as possible; and disclaimed any intention to use the word “jewelry” in his trade name.

The case was appealed and Feerer claimed that Klivans could not legally apply the name “Kay” to articles of jewelry to be sold by him. That is that he may sell jewelry but may not sell it as “Kay” jewelry; and SO’ far as territory in which the parties sell, Feerer claimed he had acquired a property right in the trade name “Kay” as applied to jewelry and that this property right belongs to him. The Court of Appeals held:

1. The word “Kay” is not descriptive of articles sold and is simply a trade name under which the parties conduct thebí ¡respective business; one has as good a right to use the trade name as the other, and as against each other, neither had any property right m same.
2. The parties, in this respect, are in much the same position as they would be if each was named Kay and each had the right accorded him under law to use his own name in connection with his own business.
3. The use of a person’s name in his business must honestly be made and not for the purpose of deceiving; and in such a way as to unnecessarily deceive the purchasing public and gain business which but for such unfair practice would go to another.
4. The jewelry sold does not establish that the name “Kay” has any significance or meaning as to the origin of the jewelry sold by Feerer so as to distinguish his jewelry from any other; and Feerer, having chosen to deal with the public under a fictitious name under which Klivans also had a right to deal, cannot compel Klivans to forego his right to the use of such name although purchasers of jewelry may be confused as to with whom they are dealing.
5. If Klivan’s selling of jewelry under the name of “Kay” confuses the public, which interferes and injures the business of Feerer, Klivan’s absolute right to use said name honestly in his own business, renders such inconvience or loss damnum absque injuria.
6. Klivans has not been guilty of any intentional deception and so long as he conducts his business in accordance with his declared intention, he will be doing that which he has a right to do and Feerer’s rights will not be violated thereby.
7. Finding nothing calling for imposition of restrictions to prevent actionable injury which it is feared might result, Feerer's petition is dismissed.

Decree accordingly.  