Mills

This is an action for an injunction against the defendants, praying that the latter be enjoined from using the name “San Diego Conservatory of Music,” and from conducting business under that name “or using the same in any manner whatsoever,” asking for damages and for general relief. The relief is sought on the ground of unfair dealing on the part of the defendants.

The complaint, in apt and proper allegations, sets forth the acts complained of and because of which plaintiff seeks relief. A general demurrer was interposed to the complaint, and was by the court overruled. Defendants, by their answer, -deny practically all the material allegations of the complaint, admitting, however, that defendants other than the corporation organized the defendant corporation, adopting said name therefor “for the purpose of engaging in the same character and line of business claimed to be carried on by plaintiff herein,” the location of their business as alleged by plaintiff, and the publishing of certain advertisements; averring that only for the injunctional order of the court they would have continued to carry on such business. The court found for the plaintiff on all the issues, and judgment…

I concur in the decision, but not in all the conclusions of the majority opinion.

Unless the trial court was justified in finding that the defendants were guilty of fraudulent attempt to pirate the business and patronage of the plaintiff, from the mere fact that they attempted to appropriate to their own use the trade name under which plaintiff was doing business, I fail to see wherein the findings are supported by the evidence.

That there was a deliberate plan and purpose of the defendant Schryock to deprive the plaintiff of the use and benefit of the name “San Diego Conservatory of Music,’’ and, in so far as possible, by incorporating his own business under the same name, obtain the exclusive use of such name, I think there is no doubt. But I fail to find any evidence in the record that he intended or attempted or used any means calculated to deceive the public or patrons of the plaintiff into patronizing Ms business under the belief that they were patronizing the plaintiff, other than by the bare use of the 'same trade name. And there is certainly no evidence, if such was his purpose, that he succeeded in doing this with a single individual. The only publicity given the…