Opinion
No. 66-359 Civ. T.
June 8, 1967.
Hall Hedrick, Miami, Fla., Shackleford, Farrior, Stallings Evans, Tampa, Fla., for plaintiffs.
John J. Lyons, Sarasota, Fla., Charles L. Lovercheck, Erie, Pa., for defendants.
FINAL JUDGMENT
This cause coming on to be heard on Plaintiffs' Complaint and Defendants' Answer thereto, Plaintiff's Motion for Partial Summary Judgment and Brief in support of said Motion to which were attached Affidavits in support thereof and Stipulation of the parties the Court finds as follows:
Plaintiffs have, for over 30 years, made use of the trade-name Howard Johnson's, the phrase "Host of the Highways," distinctive coloring (orange and blue) and distinctive lettering in their advertising which appears in magazines, newspapers and billboards throughout the United States; that these same trade-names, marks, symbols, styles and coloring appear on Plaintiffs' letterheads and brochures, and that the distinctive orange and blue coloring is used throughout Plaintiffs' restaurants and motels and has in itself developed secondary meaning. Further, the abbreviation "Ho-Jo" has been used by the general public in referring to Plaintiffs' operations for over ten years, having been used by Plaintiffs as a trade-name or trade-mark for its cheeseburgers and milk shakes as early as 1958. Since that date it has been frequently used to identify various food products offered for sale by the Plaintiffs, including carbonated beverages, and more recently has received general usages in Plaintiffs' advertising programs and in reference to its compact restaurants. Defendants' first use of the trade-name or trade-mark "Ho-Jo" was in 1966.
The Defendants' use of the symbol and color scheme of the Plaintiffs, the word "Host" in its slogan, its advertising layouts and outdoor signs is likely to, and, in fact, does cause the public to believe that there is some connection between the Plaintiffs and the Defendants, Ho-Jo Campsites, Inc., and as such Defendants' acts constitute unfair competition in violation of Plaintiffs' rights.
It is therefore, ordered, adjudged and decreed:
(1) That the Defendants be permanently enjoined and restrained from using the name "Ho-Jo" or any name deceptively similar thereto in connection with their operations.
(2) That the Defendants be permanently enjoined and restrained from using the orange and blue coloring utilized by Howard Johnson's or any color deceptively similar thereto in connection with their advertisements or at any places of business operated by, through or under the Defendants.
(3) That the Defendants make such changes in their advertising, including cessation of the use of the word "Host" as may be necessary to prevent confusion among the traveling public, or that Defendants' operations are in some manner related to the Plaintiffs' operations. That the Defendants be permanently enjoined and restrained from in any way passing off their products or services for the products and services of the Plaintiffs.