{
  "id": 8556489,
  "name": "D-E-W FOODS CORPORATION v. TUESDAY'S OF WILMINGTON, INC., GEORGE HARRISS, J. B. GERALD, and RAYMOND G. BARTO",
  "name_abbreviation": "D-E-W Foods Corp. v. Tuesday's of Wilmington, Inc.",
  "decision_date": "1976-06-02",
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    "judges": [
      "Judges Mokris and Arnold concur."
    ],
    "parties": [
      "D-E-W FOODS CORPORATION v. TUESDAY\u2019S OF WILMINGTON, INC., GEORGE HARRISS, J. B. GERALD, and RAYMOND G. BARTO"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nPlaintiff assigns as error the entry of summary judgment for defendants. It contends the record raises genuine issues of material fact.\nEven where the record discloses that there are genuine issues of fact, if the uncontroverted facts show an essential element of plaintiff\u2019s claim is non-existent, defendants are entitled to judgment as a matter of law and summary judgment is appropriate. Zimmerman v. Hogg and Allen, 286 N.C. 24, 209 S.E. 2d 795 (1974). While the record before us discloses that there are issues of fact as to the degree of similarity between the restaurants of plaintiff and defendants, and as to whether defendants have copied the restaurant design of the plaintiff, the following facts are not in controversy:\n1. Plaintiff admits that the name \u201cTuesday\u2019s\u201d is not \u201cin and of itself confusingly similar\u201d to the name \u201cDarryl\u2019s,\u201d and the name \u201cTuesday\u2019s\u201d is conspicuously and extensively used in connection with defendants\u2019 restaurant services.\n2. Plaintiff\u2019s four \u201cDarryl\u2019s\u201d restaurants are not of a common size or design relative to each other and are not even substantially similar in exterior design.\n3. \u201cTuesday\u2019s\u201d is in Wilmington, 117 miles from the nearest \u201cDarryl\u2019s\u201d restaurant in Greenville.\nPlaintiff\u2019s action for an injunction and damages from the defendants is based on the theory that defendants have attempted to \u201cpalm off\u201d or \u201cpass off\u201d their \u201cTuesday\u2019s\u201d restaurant to the public as being owned by or identified with the \u201cDarryl\u2019s\u201d family of restaurants. \u201cThe underlying principle, which is the foundation of . . . relief in this class of cases, is that one trader shall not compete with another for public patronage by adopting intentionally means adapted to deceive the public into thinking that it is trading with the latter' when in fact dealing with the former, and thus palming off his goods as those of another.\u201d Summerfield Co. v. Prime Furniture Co., 242 Mass. 149, 155, 136 N.E. 396, 398 (1922). Accord, Steak House v. Staley, 263 N.C. 199, 139 S.E. 2d 185 (1964) ; Cab Co. v. Creasman, 185 N.C. 551, 117 S.E. 787 (1923). Plaintiff is entitled to protection \u201cto prevent reasonably intelligent and careful persons from being misled\u201d as to the source of the business which defendant operates. Steak House v. Staley, supra. See also, Sears Roebuck and Co. v. Stiffel Co., 376 U.S. 225, 11 L.Ed. 2d 661, 84 S.Ct. 784 (1964) ; Compco. Corp. v. Day-Brite Lighting, 376 U.S. 234, 11 L.Ed. 2d 669, 84 S.Ct. 779 (1964) ; Beconta, Inc. v. Larson Industries, Inc., 330 F. Supp. 116 (N.D. Ill. 1971).\nThe uncontroverted facts disclosed here demonstrate that the public could not be deceived into believing that they were patronizing one of \u201cDarryl\u2019s\u201d restaurants when they ate at \u201cTuesday\u2019s.\u201d Even if the defendants\u2019 restaurant is so designed both in its interior and exterior and its business operation as to resemble either one or more or all of plaintiff\u2019s restaurants, we are of the opinion that the distance between the defendants\u2019 restaurant and the nearest \u201cDarryl\u2019s\u201d restaurant, Allen\u2019s Products Company v. Glover, 18 Utah 2d 9, 414 P. 2d 93 (1966), coupled with the conspicuous and admittedly dissimilar name, Steak House v. Staley, supra, removes as a matter of law any possibility that the defendants are palming off their restaurant as one of the \u201cDarryl\u2019s\u201d family of restaurants. Accordingly, the motion for summary judgment was properly granted.\nPlaintiff has brought forth one other assignment of error relating to the judge\u2019s discretionary rulings made after the granting of summary judgment for the defendants on plaintiff\u2019s motions for leave to add additional parties defendant, to amend the complaint, to file supplemental pleadings and to extend discovery. This assignment of error has no merit.\nSummary judgment for defendants is affirmed.\nAffirmed.\nJudges Mokris and Arnold concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Allen, Steed and Pullen by Thomas W. Steed, Jr., and D. James Jones, Jr., for plaintiff appellant.",
      "Mills and Coats by Larry L. Coats and Marshall, Williams, Gorham and Brawley by Lonnie B. Williams and Daniel Lee Brawley for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "D-E-W FOODS CORPORATION v. TUESDAY\u2019S OF WILMINGTON, INC., GEORGE HARRISS, J. B. GERALD, and RAYMOND G. BARTO\nNo. 7510SC918\n(Filed 2 June 1976)\n1. Rules of Civil Procedure \u00a7 56\u2014 genuine issues of fact \u2014 essential element of claim missing \u2014 summary judgment proper\nEven where the record discloses that there are genuine issues of fact, if the uncontroverted facts show an essential element of plaintiff\u2019s claim is non-existent, defendants are entitled to judgment as a matter of law and summary judgment is appropriate.\n2. Unfair Competition \u2014 similar restaurants \u2014 distance between restaurants \u2014 dissimilar names \u2014 no unfair competition\nIn an action to enjoin defendants from operating a certain restaurant and for damages for defendants\u2019 allegedly unfair competition in the operation of the restaurant, summary judgment was properly entered for defendants where the uncontroverted facts demonstrated that the public could not be deceived into believing that they were patronizing one of plaintiff\u2019s \u201cDarryl\u2019s\u201d restaurants when they ate at defendants\u2019 restaurant, \u201cTuesday\u2019s\u201d; moreover, even if the defendants\u2019 restaurant was so designed both in its interior and exterior and its business operation as to resemble either one or more or all of plaintiff\u2019s restaurants, the distance of 117 miles between the defendants\u2019 restaurant and the nearest \u201cDarryl\u2019s\u201d restaurant coupled with the conspicuous and admittedly dissimilar name removed as a matter of law any possibility that the defendants were palming off their restaurant as one of the \u201cDarryl\u2019s\u201d family of restaurants.\nAppeal by plaintiff from McKinnon, Judge. Judgment entered 20 June 1975 in Superior Court, Wake County. Heard in the Court of Appeals 10 March 1976.\nThis is a civil action wherein the plaintiff, D-E-W Foods Corporation, seeks to enjoin the defendants, Tuesday\u2019s of Wilmington, Inc., George Harriss, J. B. Gerald, and Raymond G. Barto, from operating a certain restaurant, \u201cTuesday\u2019s,\u201d in Wilmington, North Carolina, and asks for damages, both compensatory and punitive, for the defendants\u2019 alleged unfair competition in the operation of the restaurant.\nIn its complaint, plaintiff alleges that it owns and operates several restaurants in North Carolina called \u201cDarryl\u2019s.\u201d There are two in Raleigh, \u201cDarryl\u2019s 1906\u201d and \u201cDarryl\u2019s 1849,\u201d one in Greenville, \u201cDarryl\u2019s 1907,\u201d and one under construction in Greenbsoro. Each of the restaurants is \u201cdistinctive and unique,\u201d being specially designed and constructed in a tavern atmosphere and incorporating many unusual architectural, construction, and \u201cdesign features, fixtures, and furnishings.\u201d Because of their location in metropolitan areas and near university campuses, plaintiff alleges that the restaurants serve people from all over North Carolina, including New Hanover County, that such patronage is a substantial part of the overall business of the plaintiff, and that the reputation of the restaurants is well known throughout the State. \u201cThe distinctively constructed and designed restaurant buildings and premises of the plaintiff serve to identify the restaurant business of the plaintiff and are associated in the minds of the public with the restaurant business of the plaintiff.\u201d\nPlaintiff alleges further that the defendants, Harriss, Barto, and Gerald, caused to be organized Tuesday\u2019s of Wilmington, Inc., for the purpose of carrying on a restaurant business. In the fall of 1973, they opened a restaurant called \u201cTuesday\u2019s\u201d in Wilmington.\n\u201cIn the construction of the restaurant building in Wilmington, North Carolina, the defendants deliberately copied and imitated the architectural, construction and design features, including fixtures and furnishings, of the restaurants of the plaintiff in Raleigh and Greenville, North Carolina, so that the restaurant of the defendant in Wilmington is virtually identical in appearance, decor and design, both exterior and interior, to the restaurants of the plaintiff.\nThe defendants serve in their restaurant similar food and beverage items, which are described in their menu in a similar manner, to those served in the restaurants of the plaintiff, and the overall operations of the restaurant of the defendants are imitative and patterned after the restaurant operations of the plaintiff.\u201d\nThe acts of the defendants in copying and imitating the restaurant design and operation of the plaintiff\u2019s restaurants are alleged to be deliberate and with the intent to deceive and defraud the public so as to confuse the public as to the distinction between the restaurant of the defendants and the plaintiff\u2019s restaurants and to induce people \u201cto visit, recommend and refer to the restaurant of the defendants when they intended to visit, recommend and refer to the restaurants of the plaintiff.\u201d By causing such confusion, the defendants \u201care unfairly trading upon and appropriating\u201d the reputation, good will, and business of the plaintiff.\nDefendants, in their answer, admit that Tuesday\u2019s of Wilmington, Inc., did build and operate the restaurant, \u201cTuesday\u2019s,\u201d in Wilmington but deny all other material allegations in the complaint.\nAfter the completion of discovery, the defendants moved for summary judgment. In support of their motion, they submitted affidavits, exhibits, depositions, and answers to interrogatories, which show that there are substantial differences in the exterior design of the \u201cDarryl\u2019s\u201d restaurants, and that there are differences in the interior size and design and arrangement of fixtures and decorations of the \u201cDarryl\u2019s\u201d restaurants. \u201cTuesday\u2019s\u201d restaurant is dissimilar in several respects from the \u201cDarryl\u2019s\u201d restaurants in its size, interior design, and location and nature of fixtures and decorations. It is substantially dissimilar in exterior design to all but the \u201cDarryl\u2019s 1849\u201d restaurant in Raleigh. \u201cTuesday\u2019s\u201d restaurant is conspicuously labeled as such across the front of the building and on a stagecoach placed in front of the building, and the name \u201cTuesday\u2019s\u201d in itself is not confusingly similar to the name \u201cDarryl\u2019s.\u201d The name appears on the menus, placemats, beer mugs and matchbooks inside \u201cTuesday\u2019s.\u201d \u201cTuesday\u2019s\u201d is 117 miles from the nearest \u201cDarryl\u2019s\u201d in Greenville.\nThrough affidavits, depositions, exhibits, requests for admissions and interrogatories, the plaintiff offers evidence to show that there are numerous common features of interior design and decoration throughout all the \u201cDarryl\u2019s\u201d restaurants. \u201cTuesday\u2019s\u201d restaurant utilizes many of these common features of \u201cDarryl\u2019s\u201d in its own interior design. There is substantial similarity in the exterior design of \u201cDarryl\u2019s 1849\u201d and \u201cTuesday\u2019s.\u201d The sign \u201cTuesday\u2019s\u201d on the front of defendants\u2019 building is substantially the same in lettering and placement as is the sign on \u201cDarryl\u2019s 1849.\u201d Plaintiff\u2019s evidence further shows that the officers in the defendant corporation had an opportunity, prior to construction of the \u201cTuesday\u2019s\u201d building, to observe the exterior and interior of several \u201cDarryl\u2019s\u201d restaurants. Pictures had been taken of the interior of \u201cDarryl\u2019s 1906\u201d restaurant and the exterior of \u201cDarryl\u2019s 1849\u201d in Raleigh, which were used in designing portions of \u201cTuesday\u2019s.\u201d\nAfter considering the evidence, the court entered summary judgment for the defendants. Plaintiff appealed.\nAllen, Steed and Pullen by Thomas W. Steed, Jr., and D. James Jones, Jr., for plaintiff appellant.\nMills and Coats by Larry L. Coats and Marshall, Williams, Gorham and Brawley by Lonnie B. Williams and Daniel Lee Brawley for defendant appellees."
  },
  "file_name": "0519-01",
  "first_page_order": 551,
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}
