Opinion
19326.
ARGUED MAY 16, 1956.
DECIDED JUNE 12, 1956.
Injunction. Before Judge Pharr. Fulton Superior Court. January 23, 1956.
E. B. Judge, George A. Edmund, for plaintiff in error.
Arnold S. Kaye, contra.
The petition failed to state a cause of action based on unfair competition, and it was not error to sustain the general demurrer.
ARGUED MAY 16, 1956 — DECIDED JUNE 12, 1956.
East Georgia Motor Club, a corporation, filed its petition in the Superior Court of Fulton County against AAA Finance Company, a corporation with its principal place of doing business in Fulton County. The petition alleged: The petitioner is "duly and legally affiliated with the American Automobile Association, and under such terms and agreements does utilize services of advertising and promotion and has the sole and exclusive right to exhibit the symbol `AAA' in the area served by petitioner." The petitioner has been engaged in business in Augusta, Georgia, since November 2, 1927, and, among other things, sells insurance and finances automobiles, in affiliation with the American Automobile Association "which bears the trade name of AAA." The defendant, on or about October 20, 1954, opened an office at a stated address in Augusta, and advertised and displayed the trade name or mark "AAA" in bold letters across the front of the building occupied by it. The defendant is engaged in the business of financing automobiles, making loans in general, and writing insurance. The petitioner has also displayed the emblem "AAA" at a stated address in Augusta since March 7, 1951, and had previously displayed the emblem at stated addresses in Augusta since 1927. There has been extensive advertising by the petitioner, and a great financial and good-will position has been obtained as a result of the efforts put forth by the petitioner. The petitioner charges that the name chosen by the defendant and the selection of the letters "AAA" was and is for the fraudulent, illegal, and unfair purpose of capitalizing on, and reaping the benefits of, the efforts of the petitioner, and the use of the letters is deceiving, misleading, and confusing to the public. If the defendant is permitted to continue the use of the letters, the defendant will unjustly reap a large measure of benefit from the advertising, reputation, and good will of the name of the petitioner, to which it is alone entitled, and in the enjoyment of which it is entitled to be protected. The defendant knew beforehand that the petitioner used the trade name "AAA," and wilfully and deliberately tried to infringe upon the good reputation and past advertising endeavors of the petitioner. The use of the letters "AAA" will and does confuse and mislead the public, and the defendant's use of the letters constitutes unfair trade practices. The actions of the defendant will cause the petitioner irreparable damage, and the petitioner has no adequate remedy at law.
The prayers were that the defendant be temporarily and permanently enjoined from using the letters "AAA" in connection with the operation of its business in Richmond County, Augusta, Georgia, and that it be enjoined from advertising by signs, telephone listings, or in any manner whatsoever, by the use of the letters "AAA"; and for other and further relief.
The defendant filed general and special demurrers to the petition. Five paragraphs of the special demurrers were sustained. The order sustaining these special demurrers was amended at a later term, to overrule three of the five paragraphs. The trial court then sustained the general demurrer. The bill of exceptions assigns error on the first order sustaining the special demurrers, and on the order sustaining the general demurrer.
Counsel for the petitioner insist that the present case "is exactly in point" with the case of Kay Jewelry Co. v. Kapiloff, 204 Ga. 209 ( 49 S.E.2d 19). This contention can not be sustained. In the Kay case positive averments of fact were made as to the essential elements of unfair competition under Code § 37-712. In the present case it is not alleged when the petitioner became affiliated with the American Automobile Association; it is not alleged whether the petitioner claims it "has the sole and exclusive right to exhibit the symbol `AAA'" by reason of its affiliation with the American Automobile Association, or whether the right is claimed by reason of prior use by the petitioner in the Augusta area; it is not alleged when the American Automobile Association started using the letters "AAA"; it is not alleged when the defendant was incorporated, or when it first transacted business in Augusta, or when the defendant first used the letters "AAA" in Augusta.
It is alleged that the defendant opened an office on October 20, 1954, and "did advertise and display the trade name or mark `AAA' in bold letters across the front of the building occupied by defendant." The petitioner does not allege any similarity in the way the three A's are printed or displayed in the defendant's corporate name, to the use of the symbol "AAA" by the petitioner. It is not alleged that the defendant's use of the three A's in its corporate name is for the fraudulent purpose of leading the public to believe that the defendant is an affiliate of the American Automobile Association, and it is not alleged that the petitioner's use of the symbol "AAA" identifies it as an affiliate of the American Automobile Association to such persons as might desire to do business with the association.
On general demurrer the petition will be construed most strongly against the pleader ( Lee v. City of Atlanta, 197 Ga. 518, 520, 29 S.E.2d 774), and if an inference unfavorable to the party claiming the right may fairly be drawn from the facts alleged, such inference will prevail in determining the rights of the parties. Krueger v. MacDougald, 148 Ga. 429 ( 96 S.E. 867).
In the present case there are no averments of fact to show either a prior right or prior use by the petitioner of the symbol "AAA" in the Augusta area, and no fact is alleged to show that the public has been deceived, or that a reasonably cautious person would probably be deceived by the act of the defendant in using its corporate name on the building occupied by it. Ellis v. J. H. Zeilin Co., 42 Ga. 91; Foster, Milburn Co. v. Blood Balm Co., 77 Ga. 216 ( 3 S.E. 284); Saunders System Atlanta Co. v. Drive It Yourself Co. of Ga., 158 Ga., 1 (123 S.E. 132); First Federal Savings c. Assn. v. First Finance c. Corp., 207 Ga. 695 ( 64 S.E.2d 58); Womble v. Parker, 208 Ga. 378 ( 67 S.E.2d 133); Gordy v. Dunwody, 209 Ga. 627 ( 74 S.E.2d 886).
The trial court did not err in sustaining the general demurrer to the petition.
Judgment affirmed. All the Justices concur.