
    ARMOUR & CO. v. MASTER TIRE & RUBBER CO. et al.
    District Court, S. D. Ohio, W. D.
    August 1, 1925.
    No. 104.
    
      McMahon, Corwin, Landis & Markham, of Dayton, Ohio, for plaintiff.
    Toulmin & Toulmin and James & Cool^dge, all of Dayton, Ohio, for defendant.
   HOUGH, District Judge.

Armour & Co. filed its bill of complaint against tbe Master Tire & Rubber Company for injunctions and accounting. A basis of tbe remedy asked is unfair competition in tbe use of tbe word “Armour” as a trade-name. Tbe bill of complaint was twice amplified by amendment. Later, tbe Armour Tire & Rubber Company as well as tbe receivers for both companies were made parties defendant; the Armour Tire & Rubber Company being subsequently organized under tbe laws of Ohio for tbe purpose of acting as a selling agency for tbe Master Tire & Rubber Company. These two companies were engaged in tbe manufacture and sale, principally by tbe mail order method, of automobile tires, and perhaps other rubber goods, the business located and operated in tbe city of Dayton, Ohio.

Tbe defendants filed separate answers, and tbe cause came on for bearing upon tbe merits under stipulation that tbe affidavits filed in tbe case should be considered as proof by way of deposition.

Tbe defendant companies advertised extensively by means of printed order blanks, printed so-called guarantee bonds, newspaper advertising, display posters, letterhead advertisements, catalogue folders, and tbe like, upon which appeared prominently and repeatedly and expressions, “Armour Master,” “Armour Master Cords,” “Armour Cords,” “Armour Tire & Rubber Company,” cuts of automobile tires showing “Armour Cord” printed in mould on tbe sidewalls of the tire.

It appears: That tbe plaintiff company was first organized in 1868 by Philip D. Armour, at Chicago, 111.; that tbe business expanded and developed; branch and subsidiary companies were established in numerous large cities in tbe United States. Tbe Armour family, through various and successive representatives thereof, was continuously identified with tbe business, and through tbe successive years large sums of money were expended for tbe building up of tbe good will and reputation of tbe company’s products. That tbe company and its subsidiaries, although primarily engaged in tbe preparation of meats for consumption, developed tbe manufacture of other food stuffs and numerous other products, such as glue, sandpaper, curled hair, ammonia, fertilizer, soap, dairy products, tbe purchase and preparation for market of poultry, tbe operation of car lines, such as refrigerator and tank ears, and many other lines of industry, among which were certain products and materials used in tbe manufacture of automobiles and other products incident to tbe use of automobiles, such as “Armour’s Lustre Soap,” “Armour’s Glycerine” and “Anti-Ereeze Solution,” “Armour’s Motorists and Mechanics Soap Paste,” and tbe like.

Defendants claim tbe selection of tbe word “Armour” was for tbe purpose of signifying tbe tough, stable, and hardy character of tbe automobile tires; that is, that tbe product was in some unaccountable way “armoured,” and Was calculated to in some way create tbe impression of strength. Tbe reasonableness of this contention is not sufficiently persuasive to even require comment.

Tbe inescapable conclusion, drawn from tbe tenor of tbe entire record, is that tbe use of tbe word “Armour” in tbe corporate name of tbe selling company, and as a brand and trade-name to tbe .product, was selected for tbe purpose of taking advantage of tbe business reputation of tbe plaintiff company, tbe family name of tbe organizer, and of those prominently interested in that company throughout its existence, in tbe good will of that company gained by years of ingenious advertising and tbe expenditure of vast sums of money therefor, and for tbe purpose of confusing tbe publie and leading defendant’s patrons to believe by tbe use of the word “Armour”; that its product was of a superior standard and quality, and to induce otb- • er members of tbe publie to become patrons under such a belief. Eraud, or tbe attempt at fraud, is discernible as tbe underlying and appealing conclusion.

True it is that tbe plaintiff in all its history and in tbe development of its varied products of manufacture has never engaged in tbe manufacture of automobile tires. There is no absolute and direct competition in this field. Under tbe modern trend of judicial decision, this direct competition is not a necessary element. Tbe trend has been to distinguish tbe character of case we have here from tbe trade-mark cases, and to deal and classify tbe issue where it belongs, viz. under fraud. By no means tbe least to concern a court in such a case is tbe consideration of tbe question of bow has, and bow will, tbe continued act affect tbe publie.

Tbe Court of Appeals in tbe Third Circuit, in tbe ease of Akron-Overland Tire Co. v. Willys-Overland Co., 273 F. 674, 676, says:

“While it may be conceded that tbe plaintiff company manufactures automobiles and tbe defendant does not, and while the plaintiff does not make or sell automobile tires, and the defendant retreads and sells tires, and in exact terms the two do not compete in these particular things, yet the faet remains that the business of both is so connected with automobiles that the public, in buying tbe stocks, securities, and retread tires of the defendant company, by tbe use of tbe word ‘Overland’ in connection therewith, will, by such descriptive word, be led to believe it is buying property or articles owned or dealt in by tbe plaintiff or one of its subsidiary companies.”

And tbe court furthermore says:

“With a practically unlimited field of distinctive names open to it for choice, when the defendant lately entered the automobile industry, tbe faet that it chose to take a name that bad no connection or association with tbe automobile trade, except the good will and association which the plaintiff had given it, shows conclusively that the name was given to this new venture in the automobile field because of its established high regard in that industry, which bad been given it by tbe plaintiff.”

And again tbe Court of Appeals of our own Circuit, in tbe case of Vogue Co. v. Thompson-Hudson Co. and others, 300 F. 500, at page 512, have this to say, speaking of unfair competition and fraud as tbe provocative cause for tbe invocation of equity jurisdiction :

“This rule is usually invoked when there is an actual market competition between tbe analogous products of tbe plaintiff and tbe defendants, and so it has been natural enough to speak of it as tbe doetrine of unfair competition; but there is no fetish in tbe word ‘competition.’ Tbe invocation of equity rests more vitally upon tbe unfairness. If ‘B’ represents that bis goods are made by ‘A’, and if damage therefrom to ‘A’ is to be seen, we are aware of no consideration which makes it controlling whether this damage to ‘A’ will come from market competition with some article which ‘A’'is then manufacturing or will come in some other way. Tbe injury to ‘A’ is present, and the fraud upon the consumer is present; nothing else is needed. * * * Walter v. Ashton (1902) 2 Ch. Div. 282; Eastman Co. v. Kodak Co., 15 Rep. Pat. Cases, 105.”

The same underlying reasoning is employed in the case of Peninsular Chemical Co. v. Levinson and others (C. C. A. 6) 247 F. 658.

The same reasoning prompted the decision of a very recent ease entitled Howard Wall v. Rolls-Royce of America [4 F.(2d) 333], handed down by the Circuit Court of the Third Circuit. October term, 1924.

Permanent injunction may issue as prayed for. Entry may be presented accordingly, carrying costs for plaintiff.  