{ "id": 5453500, "name": "Yellow Cab Company, Appellant, v. Charles Ensler, Appellee", "name_abbreviation": "Yellow Cab Co. v. Ensler", "decision_date": "1919-10-10", "docket_number": "Gen. No. 24,560", "first_page": "607", "last_page": "612", "citations": [ { "type": "official", "cite": "214 Ill. App. 607" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "206 Fed. 434", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6745420 ], "opinion_index": 0, "case_paths": [ "/f/206/0434-01" ] }, { "cite": "152 Fed. 690", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6750144 ], "opinion_index": 0, "case_paths": [ "/f/152/0690-01" ] }, { "cite": "211 Mass. 219", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 476961 ], "opinion_index": 0, "case_paths": [ "/mass/211/0219-01" ] }, { "cite": "235 Fed. 408", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 4584 ], "opinion_index": 0, "case_paths": [ "/f/235/0408-01" ] }, { "cite": "195 Fed. 35", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 48510 ], "opinion_index": 0, "case_paths": [ "/f/195/0035-01" ] }, { "cite": "136 Ill. 215", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2992620 ], "opinion_index": 0, "case_paths": [ "/ill/136/0215-01" ] }, { "cite": "54 Ill. 439", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5276067 ], "opinion_index": 0, "case_paths": [ "/ill/54/0439-01" ] }, { "cite": "215 Fed. 695", "category": "reporters:federal", "reporter": "F.", "opinion_index": 0 } ], "analysis": { "cardinality": 558, "char_count": 10885, "ocr_confidence": 0.507, "pagerank": { "raw": 4.446063651887353e-08, "percentile": 0.2787809250655154 }, "sha256": "8c9752aebc6352f29f4ef0318979d64231352ac6028fed2cb4a7af0b9c3b9714", "simhash": "1:ac42fca0e53c4b98", "word_count": 1836 }, "last_updated": "2023-07-14T20:35:57.308743+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Yellow Cab Company, Appellant, v. Charles Ensler, Appellee." ], "opinions": [ { "text": "Mr. Presiding Justice Matchett\ndelivered the \u2022 opinion of the court.\nThis is an appeal from a decree which dismissed complainant\u2019s hill for want of equity.\nThe bill charged that defendant infringed complainant\u2019s registered trade-mark, and further set up facts tending to show that defendant was guilty of unfair competition. The evidence was taken in the form of affidavits submitted by the parties, with exhibits attached thereto, and a stipulation as to certain undisputed facts. Indeed there is little dispute as to any material fact in the case.\nThe complainant owns and for many years has operated in the City of Chicago a public taxicab service. It is incorporated under the name of the Yellow Cab Company. It has adopted a peculiar dress for its cabs, consisting of a yellow body and black tops, etc. It has also adopted an alleged trade-mark device which is placed npon the doors of its cabs. This device is described in the bill of complaint as, \u201cconsisting of the representation of a strap \"and buckle in circular form, about six inches in diameter, appearing in gold leaf upon the side doors upon each of the taxicabs of said Yellow Cab Company of Illinois, with the telephone number of the company thereon, and in the centre of the circle a Y-like formation in white, with the words \u2018Yellow Cab Co.\u2019 appearing in three segments of the circle formed by the letter \u2018Y\u2019 in white, upon a black background * * * . \u201d It is alleged and admitted that this device was registered by the complainant with the Secretary of the State of Illinois and that this alleged trade-mark device through long years of use has come to be one of the marks or devices by which complainant\u2019s taxicabs are identified.\nThe defendant is a member of an association known as the \u201cIndependent Taxi Owners Association.\u201d Its members are likewise engaged in the business of furnishing public taxicab service in 'the City of Chicago. He began this business subsequently to the complainant, and with the full knowledge of the aforesaid facts in regard to complainant\u2019s alleged trademark and its use. In December, 1917, he began operating a line of taxicabs known as the \u201cRed Cab Service.\u201d Instead of the yellow color which distinguishes complainant\u2019s cabs, defendant adopted a bright red color. He adopted and used upon the doors of his cabs, again using the language of complainant, \u201ca. device, consisting of the representation of a circle about six inches in diameter, in gold leaf background, \u25a0with the words, \u2018Red Cab Service\u2019 appearing on the outer ring of the circle, and in the center of the circle a Y-like formation in red, with the letters \u2018I T A \u2019 appearing in three segments of the circle formed by the letter \u2018Y,\u2019 and the letter \u2018O\u2019 appearing on the tail or lower end of the \u2018Y.\u2019 \u201d A facsimile production of each device in colors appears on the record.\nWe think appellant fairly states the situation when it says, it is evident that while difference in detail exists, the salient and noticeable features of complainant\u2019s trade-mark device, the circle disc and \u201cY\u201d are reproduced in the trade-mark device of defendant. Indeed, in every other detail it would seem the defendant endeavored to distinguish rather than imitate the device of complainant.\nIf complainant\u2019s device is a valid trade-mark and the complainant obtained an exclusive property right in it by the registration thereof, we think it would be entitled to a decree. However, we think it is apparent from the statute, Hurd\u2019s Rev. St. ch. 140, p. 2935 (J. & A. ft 11391), as well as decisions of the courts, that complainant\u2019s device cannot be considered a trade-mark as applied to its business.\n\u201cService is not trade in articles of commerce, and * * * trade-marks * * * must actually be upon articles of commerce or their containers.\u201d Searchlight Gas Co. v. Prest-o-Lite Co., 215 Fed. 695.\nSee also Candee, Swan & Co. v. Deere & Co., 54 Ill. 439; Bolander v. Peterson, 136 Ill. 215; Diederich v. W. Schneider Wholesale Wine & Liquor Co., 195 Fed. 35. The bill, therefore, cannot be sustained on the theory that defendant was guilty of technical imitation of complainant\u2019s trade-mark.\nBut although defendant\u2019s monogram is not a technical trade-mark, nevertheless, upon sufficient proof, the good-will of its business would be entitled to protection from unfair competition such as is alleged in the bill. The fundamental principle, underlying the law of unfair competition, is that one may not pass off his goods as the goods of another. If he does so, it is a fraud, not alone upon his competitor but upon the public as well. The principle is broad enough to cover service of the kind which complainant gives, as well as goods. Each case must be decided upon the particular facts which the record shows. Coca-Cola Co. v. Koke Co. of America, 235 Fed. 408.\nThe bill in this case alleges that the defendant has \u201cfraudulently and intentionally copied, imitated and simulated the said trade insignia and trade-mark device of your orator, and each' and all thereof so closely as to be calculated to and to actually deceive ordinary users and patrons of. your orator and the public generally.\u201d\nWe do not think the proofs sustain these allegations. As the parties are competitors, operating in the same territory, it would seem proof of the deception of the public and patrons, as alleged, could have been easily proved, if true. The proofs do not show that any person has been actually deceived, as alleged. Each of the affiants, testifying for the complainant on this point says: \u201cWhen I saw those red cabs bearing this device as I have described it, I thought and believed said device was the trade-mark device of the Yellow Cab Company,\u201d but no one of them says he was deceived thereby so as to unwittingly become a patron of defendant. It is not said that any one of the affiants ever received or paid for service by the Bed Cab Company, thinking the service was that of complainant. Actual intentional fraud as alleged by the bill is not sustained by proofs.\nConceding complainant\u2019s contention that proof of actual fraud is not necessary to establish unfair competition (Forster Mfg. Co. v. Cutter-Tower Co., 211 Mass. 219), that resemblance is presumed to be intentional and for the purpose of deception (Enoch Morgan\u2019s Sons Co. v. Ward, 152 Fed. 690), that the law imposes upon competitors a duty not to imitate a rival\u2019s goods or trade insignia (Moxie Co. v. Daaust, 206 Fed. 434), conceding these propositions as sustained by these authorities and others cited by complainant, we, nevertheless, think the complainant was not entitled to a decree for another and controlling reason.\nIt is alleged in the answer of the defendant, and is established by the proofs, that prior to the adoption of the Y-shaped figure in a circle by complainant as its monogram, the City of Chicago (in 1893) adopted it, substantially, as the insignia, of the city, for the use of the city and of any other individual or company caring to use the same; that its adoption was advertised and generally known to the citizens of Chicago and the people of the United States; that the city passed an ordinance adopting the device as \u201cthe municipal device for use by the varied unofficial interests of Chicago and its people\u201d; that it was adopted and ever since has been used on the stationery of the 'city, and by its various departments and officials, including the mayor. That in conformity with that ordinance, various business associations, corporations and individuals adopted and used it, including the Chicago Association of Commerce,\nComplainant says that the city had no authority under its charter to adopt such a device or enact such an ordinance; we do not think it necessary to discuss that question. Whether the ordinance is valid or invalid, the fact of its enactment lopg prior to the time when complainant began the use of and adopted this particular device, with the further fact that it became generally known and was quite generally acted upon by the city and various individuals and corporations, made it impossible, irrespective of whether the ordinance was valid or invalid, for complainant to get an exclusive property right in the device. It would have no more right to the exclusive use of this device and to protection from infringement of it than it would to the exclusive use of the name of the city itself. In the absence of proof of actual fraud by defendant, to permit complainant to appropriate to its exclusive use this monogram which has been so long used by the public generally would be to protect and not prevent unfair competition. 38 Cyc. 857.\nThe decree will be affirmed.\nAffirmed.", "type": "majority", "author": "Mr. Presiding Justice Matchett" } ], "attorneys": [ "D\u2019Ancona & Pflaum, for appellant; Frank F. Reed and Edward S. Rogers, of counsel.", "Musgrave, Oppbnheim & Lee, for appellee." ], "corrections": "", "head_matter": "Yellow Cab Company, Appellant, v. Charles Ensler, Appellee.\nGen. No. 24,560.\n1. Trade-masks and trade names, \u00a7 2 \u2014when taxicab device is not valid trade-mark. Under Hurd\u2019s Rev. St. ch. 140, p. 2935 (J. & A. H 11391), defining trade-marks, a device used by a taxicab service corporation did not relate to trade in articles of commerce or their containers, and was therefore not a valid trade-mark.\n2. Trade-marks and trade names, \u00a7 26*\u2014when taxicab company cannot enjoin use of similar cab device. A taxicab service corporation which had adopted and for many years used a Y-shaped figure in a circle as its monogram, and which although registered with the Secretary of State of Illinois, was not a valid trade-mark, was not entitled to an injunction restraining a competitor from using the same device, under the theory of unfair competition, where such monogram had prior to its adoption by complainant been adopted, substantially, as the insignia of the City of Chicago, for its use, or the use of any individual or company caring to use it; and the question whether or not the ordinance adopting such device by the city was valid or not was immaterial.\n3. Trade-marks and trade names, \u00a7 26*\u2014what evidence necessary to entitle taxicab company to enjoin use of similar cab device. Although the principle underlying the law of unfair competition that one may not pass off his goods as the goods of another and that if he does so it is a fraud not alone upon his competitor but upon the public as well applied as between competing taxicab service merchants, complainant was held not entitled to an injunction to restrain the intentional copying of its cab device, in the absence of evidence that any person had been actually deceived by the acts complained of.\nAppeal from the Superior Court of Cook county; the Hon. Charles M. Poell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918. Certiorari denied by Supreme Court (making opinion final).\nAffirmed.\nOpinion filed October 10, 1919.\nD\u2019Ancona & Pflaum, for appellant; Frank F. Reed and Edward S. Rogers, of counsel.\nMusgrave, Oppbnheim & Lee, for appellee.\nSee Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, samt topic and section number." }, "file_name": "0607-01", "first_page_order": 639, "last_page_order": 644 }