
    No. 345
    CLEVE. OPERA CO. v. CLEVE. CIVIC OPERA ASSN.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided Nov. 8, 1926
    480. EVIDENCE — Where it is sought to enjoin the use of a trade name upon the ground of confusion, evidence to support same must be of a strong and convincing nature upon the probability of confusion.
    1181. TRADE MARKS AND TRADE names — Descriptive or geographic words are not barred in a trade name umess taken in connection wxtn ocner 'worus tney are suostantially similar so as to cause deception.
    Jfirst F'UDiicacion ot tins opinion
    Attorneys — Garfield, MacGregor & Baldwin for Cleveland Opera Co.; Wilkin, Cross & Daoust for Civic Opera Assn.; all of Cleveland.
   SULLIVAN, J.

Tins cause is here on appeal from the Cuya-hoga Common Pleas ana it is sought by u,. uieveiand Upera uo. to prevent by injunction tne use by aerendant of tne name tne uieveiand Uivic Upera Association on tne ground that because ox tne similarity of the names the public, win be mislead and that thereiore there will be a diversion oi patrons winch they have built up in the last lour years.

The Cleveland Upera Company’s petition prays for a perpetual injunction against the uieveiand Civic Upera Assn., enjoining them from the use of the words “Cleveland” and “Upera” in combination in a name such as it has adopted, or m any otherwise that will be similar to or in conflict with the name “The Cleveland Opera Company” and for other equitable relief.

The Opera Association admits that its primary purpose is that of producing and presenting operas in the city of Cleveland and elsewhere, and that a protest against" the use of its name was made to them and the Secretary of State. To all other allegations there was a general denial so if there is an absence of any record as to rivalry or competition in business, the question must be decided by an analysis of the names themselves.

The Court of Appeals held:

1. Counsel for tne Cleveland Opera Co. contend that the court may grant the relief prayed even if the record is silent as to the question of competition, etc., for the reason that it is only necessary to prove that a mere probability of confusion of names will .arise, and that the public will be mislead thereby.

2. This proof, however, must be substantial. The evidence in this kind of a case must be of a strong and convincing nature on the, question of the probability of confusion.

3. The great weight of authority is that there can be no monopoly in words such as “Cleveland” and “Opera” but it does not follow that where such words are used so as to be deceptive and misleading one will not be granted relief.

4. An analysis of all thp various words in the two names indicated a great similarity the only probable result of which would be confusion, and such confusion as would lead to unfair competition.

5. “There may be an unfair use for trade purposes of words which are not capable of being an arbitrary trade mark or trade name, because they are geographical or purely descriptive; but when used unfairly tend to create confusion on the part of the public as to goods or firms, and when so used and such confusion results, their use will be enjoined.”

Injunction allowed.

(Levine, PJ., and Vickery, J., concur.)  