Schwartz

Harry M. Schwartz sued Slenderella Systems of California, Inc., to enjoin the assertedly wrongful use of a trade name. His appeal from an adverse judgment presents for decision questions as to the sufficiency of the evidence and the findings to support the judgment.

Some of the facts were presented by stipulation. Counsel also agreed that the trial court should consider as evidence certain depositions, photographs, advertising matter, the stationery used by each of the parties, and an affidavit concerning a trade-mark search made by counsel for the defendant.

These facts are undisputed:

For several years, Schwartz has engaged in the retail sale of women's apparel under the trade names of "Slenderella" and "Slenderella of Hollywood." At the time this action was tried, he operated two stores in the Los Angeles area, catering primarily to larger-sized women, and specializing in large-size and half-size garments. He began using the name "Slenderella of Hollywood" in 1939 when he opened his first store and filed with the clerk of Los Angeles County a certificate of doing business under that fictitious name. (Civ. Code, 2466, 2468.) Schwartz opened his second…