{ "id": 1557225, "name": "ROYAL INTERNATIONAL OPTICAL COMPANY, d/b/a Texas Optical, a Texas Corporation, Plaintiff-Appellee, v. TEXAS STATE OPTICAL COMPANY, a Texas Corporation, and Dr. N. J. Rogers, Individually and as a partner of Texas State Optical Company, a/k/a TSO, Defendants-Appellants", "name_abbreviation": "Royal International Optical Co. v. Texas State Optical Co.", "decision_date": "1978-09-12", "docket_number": "No. 3112", "first_page": "237", "last_page": "245", "citations": [ { "type": "official", "cite": "92 N.M. 237" }, { "type": "parallel", "cite": "586 P.2d 318" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "110 P. 847", "category": "reporters:state_regional", "reporter": "P.", "year": 1910, "opinion_index": 0 }, { "cite": "15 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 205986 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/nm/15/0528-01" ] }, { "cite": "144 Colo. 23", "category": "reporters:state", "reporter": "Colo.", "case_ids": [ 76542 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/colo/144/0023-01" ] }, { "cite": "140 N.W.2d 280", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1966, "opinion_index": 0 }, { "cite": "30 Wis.2d 123", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8669608 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/wis-2d/30/0123-01" ] }, { "cite": "247 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "355 Mass. 738", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 302555 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/mass/355/0738-01" ] }, { "cite": "385 F.2d 533", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2085156 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/f2d/385/0533-01" ] }, { "cite": "394 F.2d 240", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2153653 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/394/0240-01" ] }, { "cite": "43 A.L.R.3d 787", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1972, "opinion_index": 0 }, { "cite": "446 S.W.2d 845", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10149882 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/sw2d/446/0845-01" ] }, { "cite": "104 A.2d 241", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1954, "pin_cites": [ { "page": "243" } ], "opinion_index": 0 }, { "cite": "81 R.I. 445", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 2661999 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/ri/81/0445-01" ] }, { "cite": "266 N.E.2d 20", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "pin_cites": [ { "page": "22" } ], "opinion_index": 0 }, { "cite": "255 Ind. 612", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1808939 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ind/255/0612-01" ] }, { "cite": "393 F.2d 9", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2108999 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/f2d/393/0009-01" ] }, { "cite": "37 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575360 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0562-01" ] }, { "cite": "44 N.M. 460", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566873 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/nm/44/0460-01" ] }, { "cite": "43 N.M. 296", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568286 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/nm/43/0296-01" ] }, { "cite": "56 N.M. 385", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584778 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0385-01" ] }, { "cite": "79 N.M. 697", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2738241 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "700" }, { "page": "806" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0697-01" ] }, { "cite": "66 P. 550", "category": "reporters:state_regional", "reporter": "P.", "year": 1901, "opinion_index": 0 }, { "cite": "11 N.M. 145", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 11271578 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/nm/11/0145-01" ] }, { "cite": "31 N.M. 344", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1551498 ], "weight": 2, "year": 1926, "opinion_index": 0, "case_paths": [ "/nm/31/0344-01" ] }, { "cite": "120 P. 304", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "16 N.M. 689", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4683395 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nm/16/0689-01" ] }, { "cite": "38 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559138 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/nm/38/0556-01" ] }, { "cite": "56 N.M. 70", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584714 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0070-01" ] }, { "cite": "86 N.M. 31", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2824826 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/86/0031-01" ] }, { "cite": "86 N.M. 181", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2829198 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nm/86/0181-01" ] }, { "cite": "87 N.M. 434", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2833526 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0434-01" ] }, { "cite": "83 N.M. 230", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5340227 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/83/0230-01" ] }, { "cite": "37 N.M. 503", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575396 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0503-01" ] }, { "cite": "37 N.M. 246", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575334 ], "weight": 2, "year": 1933, "pin_cites": [ { "page": "251" }, { "page": "87" } ], "opinion_index": 0, "case_paths": [ "/nm/37/0246-01" ] }, { "cite": "85 N.M. 718", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772426 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "723" }, { "page": "694" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0718-01" ] }, { "cite": "198 F. 369", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6740526 ], "weight": 2, "year": 1912, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/f/198/0369-01" ] }, { "cite": "90 N.M. 466", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870207 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0466-01" ] }, { "cite": "196 Kan. 319", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 75481 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/kan/196/0319-01" ] }, { "cite": "157 Or. 143", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2428166 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/or/157/0143-01" ] }, { "cite": "545 S.W.2d 34", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9925762 ], "weight": 2, "pin_cites": [ { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/sw2d/545/0034-01" ] }, { "cite": "277 Or. 191", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2148062 ], "weight": 3, "year": 1977, "opinion_index": 0, "case_paths": [ "/or/277/0191-01" ] }, { "cite": "41 N.M. 395", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571415 ], "weight": 4, "year": 1937, "pin_cites": [ { "page": "402" }, { "page": "935" } ], "opinion_index": 0, "case_paths": [ "/nm/41/0395-01" ] }, { "cite": "40 N.M. 423", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842175 ], "weight": 2, "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0423-01" ] }, { "cite": "179 P. 235", "category": "reporters:state_regional", "reporter": "P.", "year": 1919, "pin_cites": [ { "page": "237" } ], "opinion_index": 0 }, { "cite": "25 N.M. 134", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4736019 ], "year": 1919, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nm/25/0134-01" ] }, { "cite": "76 N.M. 632", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504038 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0632-01" ] }, { "cite": "78 N.M. 381", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324939 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0381-01" ] }, { "cite": "53 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580730 ], "weight": 3, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/53/0116-01" ] }, { "cite": "68 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2717197 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/nm/68/0140-01" ] }, { "cite": "90 N.M. 21", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869778, 2867469 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/90/0021-02", "/nm/90/0021-01" ] } ], "analysis": { "cardinality": 1137, "char_count": 24080, "ocr_confidence": 0.816, "pagerank": { "raw": 1.7861377754968799e-07, "percentile": 0.7142314088581998 }, "sha256": "3905829af011a3997f40bd4f2bd561b8e2e68ba016e910e95f49a0e21a29fcd5", "simhash": "1:5d0ef3a75864a54e", "word_count": 4011 }, "last_updated": "2023-07-14T17:06:13.817562+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "ROYAL INTERNATIONAL OPTICAL COMPANY, d/b/a Texas Optical, a Texas Corporation, Plaintiff-Appellee, v. TEXAS STATE OPTICAL COMPANY, a Texas Corporation, and Dr. N. J. Rogers, Individually and as a partner of Texas State Optical Company, a/k/a TSO, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThis is the second appeal of the defendants. The first appeal arose from a judgment that restrained defendants from using the trade name \u201cTexas State Optical\u201d.or any other name deceptively similar to plaintiff\u2019s trade name \u201cTexas Optical.\u201d This judgment was affirmed by the Supreme Court in Royal Intern\u2019l Optical Co. v. Texas State Optical Co., 90 N.M. 21, 559 P.2d 398 (1976). The second appeal arises out of a judgment that awarded plaintiff damages, and, by way of contempt proceedings, an attorney fee for defendants\u2019 use of the trade name \u201cTexas State Opticians.\u201d\nBecause the Opinion of this Court in the first appeal was ordered by the Supreme Court not to be published, and the opinion of the Supreme Court was perfunctory, a resume of the history of this case follows:\nIn the original trial, the court found that plaintiff and defendants were doing business in Albuquerque, New Mexico. Plaintiff registered to do business in April, 1971, under the trade name of \u201cTexas Optical,\u201d and opened for business at that time. It had done business continuously under its trade name in the Albuquerque and Santa Fe trade areas. In September, 1974, defendants opened for business in competition with plaintiff, under the trade name of \u201cTexas State Optical.\u201d \u201cTexas Optical\u201d and \u201cTexas State Optical\u201d were confusingly similar to the public within the trade areas and by reason thereof, plaintiff would likely suffer dilution of its trade name and clientele and would suffer irreparable injury to its business, trade, and business reputation.\nThe trial court concluded that plaintiff had the prior right to the exclusive use of the trade name \u201cTexas Optical\u201d in the Albuquerque and Santa Fe trade areas.\nOn February 26, 1975, a Judgment and Restraining Order was entered. (1975 Judgment.) Defendants were \u201cenjoined and restrained from advertising their product or in any manner whatsoever, using the trade name Texas State Optical, or any other name deceptively similar to plaintiff\u2019s trade name Texas Optical . . . .\u201d [Emphasis added.]\nDefendants appealed the 1975 Judgment to this Court. The injunction was suspended during this appeal.\nThe unpublished majority opinion of this Court, Judge Sutin dissenting, reversed the judgment rendered in the trial court.\nBy way of certiorari, the Supreme Court in Royal, supra, reversed the opinion of this Court in the following language.\nThere being substantial evidence to support the judgment of the trial court, its decision is affirmed.\nThereafter, the trial court entered Judgment On Mandate. The 1975 Judgment was affirmed. The order suspending the injunction had expired and was no longer in force, and the court retained jurisdiction to determine the amount of damages sustained by plaintiff and to grant judgment accordingly.\nWithout seeking the guidance of the court, defendants began to use the trade name \u201cTexas State Opticians\u201d in place of \u201cTexas State Optical,\u201d and a second action arose in the same court. Plaintiff moved the court to hold defendants in contempt for use of the trade name \u201cTexas State Opticians\u201d because it was deceptively similar to plaintiff\u2019s trade name and in violation of the 1975 Judgment. Three hearings were held on the issues of contempt and damages.\nAt the end of the last hearing held on March 31, 1977, the trial court orally ordered defendants to'be in contempt. Defendants were fined $5,000.00, suspended if defendants would, within 30 days, stop the use of the trade name \u201cTexas State Opticians.\u201d On April 13,1977, defendant filed a Certificate of Compliance and changed its trade name to \u201cTSO Opticians.\u201d\nThereafter, the trial court entered its findings that the trade name \u201cTexas State Opticians\u201d was deceptively similar to the name \u201cTexas Optical\u201d; that the defendants had been found in contempt of court for a willful violation of the plain wording of the Court Mandate and were fined $5,000.00; that the fine was suspended pending compliance with the court\u2019s Order; and that plaintiff suffered damages in the total sum of $4,175.00.\nJudgment was entered accordingly, and, in addition thereto, plaintiff was awarded an attorney fee of $2,500.00 \u201cincurred in bringing the proceedings to enforce the Court\u2019s Order.\u201d\nDefendants appeal. We affirm.\nDefendants raise three points on appeal:\n(1) The injunction in the 1975 Judgment is vague, overbroad and not sufficiently definite to support a judgment of contempt for using a trade name said to be \u201cdeceptively similar\u201d to the name \u201cTexas Optical.\u201d\n(2) The name \u201cTexas State Opticians\u201d is not deceptively similar to the name \u201cTexas Optical\u201d as a matter of law.\n(3) Any damage award or award of attorney\u2019s fees is not supported by substantial evidence and was unlawful.\nA. Defendants are barred from attacking the 1975 Judgment\nPlaintiff moved the court for an order requiring defendants to show cause why they should not be held in contempt of court for continued use of the trade name \u201cTexas State Opticians,\u201d in violation of the 1975 Judgment, a name deceptively similar\u2019 to plaintiff\u2019s trade name \u201cTexas Optical.\u201d\nBy way of response, defendants attacked the validity of the following language in the 1975 Judgment:\n\u201c. . . any other name deceptively similar to plaintiff\u2019s trade name Texas Optical.\u201d\nThe basis for the attack is the claim that the words \u201cdeceptively similar\u201d are vague, over broad and ambiguous, insufficiently definite to support a judgment of contempt; that \u201cthere is no guidance anywhere in the trial court\u2019s judgment that would give TSO any notice as to what it is restrained from doing.\u201d\nDefendants have not explained, nor given any reasons why they did not seek the guidance of the court before they adopted the use of the trade name \u201cTexas State Opticians.\u201d Neither have the defendants explained nor given any reasons why they did not directly attack the 1975 Judgment by motion to vacate or set aside the Judgment because of the vagueness of the language.\nPlaintiff claims that defendants made a collateral attack on the judgment and this they cannot do. We agree.\n\u201cThe general rule is that a judgment is not subject to collateral attack where the court had jurisdiction of the subject matter and of the parties . . . 46 Am. Jur.2d Judgments, \u00a7 621 (1969). \u201c . [It] is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except . for fraud in its procurement.\u201d 49 C.J.S. Judgments \u00a7 401 (1947).\nHowever, where lack of jurisdiction affirmatively appears on the face of the judgment, the judgment is void and therefore open to collateral attack. St. Paul Fire and Marine Insurance Co. v. Rutledge, 68 N.M. 140, 359 P.2d 767 (1961). But where the lack of jurisdiction does not affirmatively appear on the face of the record, the judgment is not subject to collateral attack. McDonald v. Padilla, 53 N.M. 116, 202 P.2d 970 (1948); Arthur v. Garcia, 78 N.M. 381, 431 P.2d 759 (1967).\nIf defendants wanted to challenge the validity of the 1975 Judgment, it had to be done by way of a direct attack, exampled by motion to vacate or set aside the Judgment. Barela v. Lopez, 76 N.M. 632, 417 P.2d 441 (1966).\nBeginning almost 60 years ago, in Acequia Llano v. Acequia Las Joyas, 25 N.M. 134, 142, 179 P. 235, 237 (1919) the Supreme Court said:\nThe universal rule adhered to by the courts is that the judgment or final order of a court having jurisdiction of the subject matter and the parties, however erroneous, irregular, or informal such judgment or order may be, is valid until reversed or set aside. Black on Judgments, \u00a7 190. And the general rule is that an error of law does not furnish ground for collateral attack on a judgment. 15 R.C.L. 861. [Emphasis added.]\nIt was repeated in McDonald v. Padilla, supra; In re Field's Estate, 40 N.M. 423, 60 P.2d 945 (1936); and in State v. Patten, 41 N.M. 395, 69 P.2d 931 (1937).\nState v. Patten, involved an injunction restraining an election. In subsequent contempt proceedings for violating the injunction, the court held that the judgment was conclusive against collateral attack. The court said:\n. The appellees having disobeyed the injunction, cannot now claim that the injunction decree was erroneous. The judgment of a court having jurisdiction is to be obeyed, no matter how clearly it may be merely erroneous. The method of correcting error is by appeal, and not by disobedience. A party proceeded against for disobedience to an order or judgment is never allowed to allege as a defense for his misconduct that the court erred in its judgment. He must go further, and make out that in point of law there was no order and no disobedience by showing that the court had no right to judge between the parties upon the subject. [41 N.M. at 402, 69 P.2d at 935.] [Emphasis added.]\nSee, State ex rel. Mix v. Newland, 277 Or. 191, 560 P.2d 255 (1977).\nFurthermore, the contempt proceeding was one undertaken to enforce the 1975 Judgment.\n\u201cA proceeding to enforce a judgment is collateral to the judgment, and therefore no inquiry into its regularity or validity can be permitted in such a proceeding.\u201d 49 C.J.S. Judgments \u00a7 409 (1947); Pitts v. Dallas Nurseries Garden Ctr., Inc., 545 S.W.2d 34 (Tex.Civ.App.1976); Travelers Ins. Co. of Hartford, Conn. v. Staiger, 157 Or. 143, 69 P.2d 1069 (1937); Friesen v. Friesen, 196 Kan. 319, 410 P.2d 429 (1966).\nPitts was a post-judgment garnishment proceeding against State Farm Insurance Companies as garnishees and holders of monies owed to Pitts. Pitts intervened and sought to quash the writ of garnishment because the judgment was \u201ctoo vague and indefinite.\u201d The court said:\nAppellant\u2019s [Pitts] questioning of the original judgment in the garnishment proceedings was a collateral attack upon the judgment and is not permitted, [citation omitted]. The original judgment does not appear to be fatally defective upon its face. . . . [545 S.W.2d at 37.]\nDefendants\u2019 response is not clear. They claim that plaintiff entirely missed defendants\u2019 point. Defendants\u2019 point is that the phrase \u201cany other name deceptively similar to plaintiff\u2019s trade name Texas Optical\u201d was so vague and indefinite that the 1975 Judgment could not be enforced by contempt proceedings; that \u201ca collateral attack is an attempt to impeach the judgment by matters dehors the record, in an action other than that in which it was rendered,\u201d and \u201cthat matters dehors the record were not presented to the trial court, nor are they being presented to this Court.\u201d Defendants rely on Barela v. Lopez, supra. Defendants misinterpret this case.\nDefendants seem to dance around the doctrine of collateral attack, and attempt to pole vault to reversal without a pole.\nWe hold that the defendants are barred from attacking the 1975 Judgment.\nB. The name \u201cTexas State Opticians\u201d is deceptively similar to the name \u201cTexas Optical.\u201d\nDefendants\u2019 second point is that \u201cThe name \u2018Texas State Opticians\u2019 is not deceptively similar to the name \u2018Texas Optical\u2019 as a matter of law.\u201d [Emphasis added.]\nThe trial court found:\n3. The name \u201cTexas State Opticians\u201d is deceptively similar to the name \u201cTexas Optical.\u201d\n4. There has been confusion to the public by the use of the trade name Texas State Opticians by respondent and the name Texas Optical by petitioners.\nPlaintiff had the exclusive use of the trade name \u201cTexas Optical\u201d from April 1, 1971 to June 2, 1977, the date the judgment was entered, a period of over six years.\nThere was substantial evidence to support the trial court\u2019s findings of fact, and such findings supported by substantial evidence cannot be disturbed on appeal. Boone v. Boone, 90 N.M. 466, 565 P.2d 337 (1977).\nDefendants claim that the trade names are not deceptively similar as a matter of law because plaintiff did not prove that the word \u201cTexas\u201d had acquired a \u201csecondary meaning,\u201d and the trial court made no such finding; that in the absence of a specific finding that the word \u201cTexas\u201d had acquired a \u201csecondary meaning,\u201d defendants were free to use the trade name \u201cTexas State Opticians.\u201d\nDefendants acquired their \u201csecondary meaning\u201d theory from the trade mark case of G. & C. Merriam Co. v. Saalfield, 198 F. 369 (6th Cir. 1912), a case followed generally in the United States. With reference to \u201csecondary meaning,\u201d the court said:\n. It contemplates that a word or phrase originally, and in that sense primarily, incapable of exclusive appropriation with reference to an article on the market, because geographically or otherwise descriptive, might nevertheless have been used so long and so exclusively by one producer with reference to his article that, in that trade and to that branch of the purchasing public, the word or phrase had come to mean that the article was his product; in other words, had come to be, to them, his trade-mark. So it was said that the word had come to have secondary meaning . . . . [Emphasis added.] [198 F. at 373.]\nIf we understand defendants\u2019 position correctly, the failure to specifically find that the word \u201cTexas\u201d has a geographical descriptive word in plaintiff\u2019s trade name meant \u201cTexas\u201d to the trade and to the public, then the trade names were not deceptively similar as a matter of law.\nThe \u201csecondary meaning\u201d theory was not raised in the district court.\nDefendants did not point to any place in the contempt proceedings where this \u201csecondary meaning\u201d theory was mentioned or presented. The record shows that defendants made no reference to any duty of plaintiff to shoulder this burden as a condition precedent to recovery or to any such defense stated in their response to plaintiff\u2019s motion, or to any evidence on the subject or to any requested finding by defendants on this issue. It came to plaintiff and to this Court like a comet out of the sky, and like the cqmet, plaintiff\u2019s attack disappears from view. \u201cIt is fundamental that matters not brought into issue by the pleadings and upon which no decision of the trial court was sought, or fairly invoked, cannot be raised on appeal.\u201d Groendyke Transp., Inc. v. New Mexico St. Corp. Com\u2019n, 85 N.M. 718, 723, 516 P.2d 689, 694 (1973).\nWe note that at the 1975 trial defendants submitted a finding of fact and conclusion of law that the trade name \u201cTexas State Optical\u201d had acquired a secondary meaning and that defendants were entitled to protection as a common law trade name. Defendants\u2019 position lay at rest there. It was not revived.\nIt has long been the rule that a final judgment is conclusive as to a claim in controversy between the parties as to every matter which was offered to sustain or defeat the claim. \u201cPublic policy requires that there be an end to litigation and that rights once established by a final judgment shall not again be litigated in any subsequent proceeding.\u201d Ealy v. McGahen, 37 N.M. 246, 251, 21 P.2d 84, 87 (1933). This rule of law has been consistently followed. Board of County Com\u2019rs of Quay County v. Wasson, 37 N.M. 503, 24 P.2d 1098 (1933); Miller v. Miller, 83 N.M. 230, 490 P.2d 672 (1971). The right and the power of plaintiff to recover against defendants was established in the 1975 trial. It is too late in the day for defendants in a contempt proceeding to attempt to defeat plaintiff\u2019s claim for failure to establish a \u201csecondary meaning\u201d of the word \u201cTexas.\u201d\nIf we assumed that the contempt proceeding was a different cause or demand, defendants are estopped by judgment or collateral estoppel. The judgment in the prior action operated as an estoppel as to those matters which were actually litigated and determined in the first proceeding. Once a party has fought a matter 'in litigation he cannot later renew that duel. State v. Nagel, 87 N.M. 434, 535 P.2d 641 (1975); Atencio v. Vigil, 86 N.M. 181, 521 P.2d 646 (1974); State v. Tijerina, 86 N.M. 31, 519 P.2d 127 (1973); Town of Atrisco v. Monohan, 56 N.M. 70, 240 P.2d 216 (1952). The \u201csecondary meaning\u201d theory was decided in the 1975 Judgment. Defendants\u2019 second attempt to defeat plaintiff\u2019s claim is thwarted.\nFinally, when the Supreme Court in Royal Intern\u2019! Optical Co., supra, affirmed the judgment of the trial court, the \u201claw of the case\u201d doctrine became effective. It established the right and power of plaintiff to further prosecute its claim against defendants irrespective of the \u201csecondary meaning\u201d concept. The law of the case, whether right or wrong, is controlling on the second appeal. This doctrine applies to questions which might have been, but were not, raised or presented in the prior appeal. Sanchez v. Torres, 38 N.M. 556, 37 P.2d 805 (1934); Davisson v. Bank, 16 N.M. 689, 120 P. 304 (1911). It also applies to those questions which are necessarily involved in reaching the decision. Fmrs.\u2019 S. Bank of Texhoma v. Clayton N. Bk., 31 N.M. 344, 245 P. 543 (1926); United States v. D. & R. G. Railroad, 11 N.M. 145, 66 P. 550 (1901).\nWe affirm the finding of the trial court that the name \u201cTexas State Opticians\u201d is deceptively similar to the name \u201cTexas Optical.\u201d\nC. The damage award was supported by substantial evidence.\nThe trial court found:\n7. The issue was presented to the Court by agreement of the parties as to any damages that might have been suffered by petitioners by respondents use of the trade name \u201cTexas State Optical\u201d during the pendency of the appeal in this matter between the entry of the original order of the Court on February 26, 1975, and the final order of September 15,1976.\n8. The Court has found the petitioners have suffered damages in the amount of $2,750.00 to the East Central Store and $1,425.00 damages to the Five Points Store for a total judgment of $4,175.00.\nAt the close of the case, the court orally announced:\nAs everybody\u2019s mentioned here, the calculation of damages is indeed difficult, that there is no precise way of calculating damages. The evidence that has been presented to the Court in certain instances is rather sophomoric and rather elemental, and perhaps even the way that this Court will calculate damages admittedly is not precise but I think the cases hold the difficulty of calculating damages is no way a bar to the \u2014 to the awarding of damages if there is some basis in the proof, the evidence before the Court.\nWe\u2019re talking about a 19 month period and we\u2019ve talked about 30-day months, that\u2019s approximately 570 days, 570 business days, probably less than that and . it would appear to the Court that two stores particularly have been shown to me to have suffered some loss. ******\nI think a fair measure would be $5.00 a day, and the Court is going to award damages of $2,750.00 on the East Central Store and half that amount on the Five Points store of $1,425.00, for a total of $4,175.00.\nWhether we agree or disagree, we compliment a district judge who lays his/her cards on the table for guidelines of attorneys and appellate courts. It is important that we know the basis upon which the trial court reaches its decision. \u201cIt is hornbook law that the decision of a trial court will be upheld if it is right for any reason.\u201d Scott v. Murphy Corporation, 79 N.M. 697, 700, 448 P.2d 803, 806 (1968).\nWhile damages must be susceptible of ascertainment otherwise than by mere speculation, conjecture, or surmise, it is now generally held that uncertainty which prevents a recovery is uncertainty as to the fact of the damage, and not as to the amount; and that where it is certain that damage has resulted mere uncertainty as to the amount will not preclude the right to recovery. J. R. Watkins Co. v. Eaker, 56 N.M. 385, 244 P.2d 540 (1952); Nichols v. Anderson, 43 N.M. 296, 92 P.2d 781 (1939).\nDefendants committed a willful violation of the order of the 1975 Judgment and were held in contempt. We deem this such a case of wrongdoing that sound policy requires that the risk involved in the estimation of damages by the district court should be a burden of the defendants. We decline to quibble over the question of whether the exact damages have been clearly established. We experience no misgiving in sustaining the findings of the trial court under circumstances like those here present, where willful conduct and contempt are established. Stewart v. Potter, 44 N.M. 460, 104 P.2d 736 (1940). To view the vexatious difficulty in ascertaining damages in an injunction proceeding see Gonzales v. Rivera, 37 N.M. 562, 25 P.2d 802 (1933). For an extensive review of damages for misuse of a trade secret, see DeVries v. Starr, 393 F.2d 9 (10th Cir. 1968).\n4 Callmann, Unfair Competition Trademarks and Monopolies (3d Ed. 1970). Section 89.1(a), pp. 247-248 says:\n\u201cDamages\u201d as a term of art has acquired a clear and definite legal meaning; it is limited to the actual pecuniary loss sustained by the plaintiff. Whether the damage results from infringement in the strict sense of the patent or trademark law or from unfair competition, it can seldom be measured with any assurance of mathematical accuracy. Sometimes, the plaintiff\u2019s claim of damages is judicially characterized as an attempt to seek unjust enrichment at the defendant\u2019s expense. The difficulty besetting any showing of damages to intangible values and the radial repercussions of a compet\u00edtive injury can hardly be over-estimated. The competitive tort does not differ from other torts and a wrongdoer should answer for all the consequences naturally resulting from his wrongful act, whether anticipated or contemplated. Recoverable damages, therefore, include compensation for all injury to a plaintiff\u2019s business naturally and proximately caused by the defendant\u2019s tortious act. This includes injury to reputation or goodwill, loss of business, additional expenses incurred because of the tort, such as change of name, and all other elements of injury to the business.\nWe hold that the trial court\u2019s finding on damages was a fair determination of the loss suffered by plaintiff.\nD. Plaintiff was entitled to an attorney fee.\nDefendants decry the award of attorney fees to plaintiff. We disagree. \u201cAn injunction while it is in force must be obeyed in order to preserve respect for and obedience to the mandates of the court. Any other approach would be intolerable.\u201d Thomas v. Wollen, 255 Ind. 612, 266 N.E.2d 20, 22 (1971); State ex rel. Mix, supra. In civil contempt, \u201cthe punishment is remedial and designed to reimburse complainants for the wrong done as a result of the noncompliance with a valid order of the court.\u201d Nelson v. Progressive Realty Corp., 81 R.I. 445, 104 A.2d 241, 243 (1954). Reimbursement includes attorney fees. In the prosecution of the contempt proceedings the trial court in its discretion may allow the complainant a reasonable attorney\u2019s fee to be assessed against the violator as a part of the expenses and costs incurred by the complainant. R. E. Harrington v. Frick, 446 S.W.2d 845 (Mo.App. 1969), 43 A.L.R.3d 787 (1972); Folk v. Wallace Business Forms, Inc., 394 F.2d 240 (4th Cir. 1968); Chas. Pfizer & Co. v. Davis-Edwards Pharmacal Corp., 385 F.2d 533 (2d Cir. 1967); Lyon v. Bloomfield, 355 Mass. 738, 247 N.E.2d 555 (1969); Novo Industrial Corp. v. Nissen, 30 Wis.2d 123, 140 N.W.2d 280 (1966); Lewis v. Lorenz, 144 Colo. 23, 354 P.2d 1008 (1960). See, Costilla Co. v. Allen, 15 N.M. 528, 110 P. 847 (1910).\nPlaintiff was entitled to an award of $2,500.00 as an attorney fee for successfully pursuing the contempt proceeding.\nAffirmed.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "SUTIN, Judge." } ], "attorneys": [ "William E. Snead, Ortega & Snead, Albuquerque, Sumner G. Buell, Jasper & Buell, Santa Fe, Robert Q. Keith, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for defendants-appellants,", "E. Douglas Latimer, E. Douglas Latimer, P. A., Charles C. Spann, Charles C. Spann, P. A., Albuquerque, for plaintiff-appellee." ], "corrections": "", "head_matter": "586 P.2d 318\nROYAL INTERNATIONAL OPTICAL COMPANY, d/b/a Texas Optical, a Texas Corporation, Plaintiff-Appellee, v. TEXAS STATE OPTICAL COMPANY, a Texas Corporation, and Dr. N. J. Rogers, Individually and as a partner of Texas State Optical Company, a/k/a TSO, Defendants-Appellants.\nNo. 3112.\nCourt of Appeals of New Mexico.\nSept. 12, 1978.\nRehearing Denied Sept. 22, 1978.\nWrit of Certiorari Denied Oct. 26, 1978.\nWilliam E. Snead, Ortega & Snead, Albuquerque, Sumner G. Buell, Jasper & Buell, Santa Fe, Robert Q. Keith, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for defendants-appellants,\nE. Douglas Latimer, E. Douglas Latimer, P. A., Charles C. Spann, Charles C. Spann, P. A., Albuquerque, for plaintiff-appellee." }, "file_name": "0237-01", "first_page_order": 273, "last_page_order": 281 }