Opinion
03-16-1923
YELLOW CAB CO. v. KNOX.
Jess & Straw, of Camden, for complainant. William J. Kraft, of Camden, for defendant.
Bill by Yellow Cab Company against Robert Knox, Seeking an injunction to prevent unfair competition on part of defendant. On order to show cause. Restraint pendente lite ordered.
Jess & Straw, of Camden, for complainant.
William J. Kraft, of Camden, for defendant.
LEAMING, Vice Chancellor. In this suit the complainant seeks an injunction to prevent unfair competition on the part of defendant.
In the operation, in Camden, of what is commonly known as "Yellow Cabs," complainant enjoys in that city and elsewhere not only an established business, but also a valuable business reputation and patronage. In conducting that business, the principal "stand" of complainant's cabs is at the Pennsylvania Railroad Terminal in Camden. Defendant operates a taxicab at the same terminal. Prior to February 18, 1923, defendant's taxicab was of a dark color, and could not be mistaken for one of complainant's cabs; on that date defendant's taxicab appeared in a garb of yellow. The bill of complaint was filed herein by complainant March 1st following.
A hearing has been had at the return of an order to show cause on the bill of complaint, and the affidavits annexed thereto, and affidavits filed on behalf of defendant.
At the conclusion of the hearing, and by consent of the respective parties, defendant's taxicab and one of complainant's taxicabs were brought to the front of the courthouse and viewed by the court for the purpose of comparison.
The case in its essential features is practically identical with that of Taxi & Yellow Taxi Operating Co. v. Martin, 91 N. J. Eq. 233, 108 A. 763, except that case was on final hearing; this case is on application for restraint pendente lite.
There is not in my mind the slightest doubt but that the resemblance of defendant's taxicab to the taxicabs of complainant will necessarily deceive the traveling public by leading people who seek taxicab service to believe that the taxicab of defendant is a taxicab operated by complainant. Many of the passengers coming from the ferry and seeking a taxicab of complainant will inevitably enter defendant's cab in the belief that they are patronizing complainant. It cannot be otherwise. Complainant's cars are widely advertised and favorably known to the public, and their peculiarly conspicuous color has brought them to the attention of almost every one who has occasion to use taxicabs, and the suggestion, that a passenger at the ferry with complainant's taxicabs in mind will be at all likely to observe the features of difference between complainant's cars and the car of defendant, cannot be seriously entertained; this is especially so at night, when the minor points of difference are even less noticeable. There are points of difference. When the cars were placed side by side for the special purpose of inspection, these points of difference are plain enough. Complainant's cars have the words "Yellow Cab Co." painted on their rear doors. For obvious reasons, defendant's car does not contain that marking. When the cars are critically compared, it is easy enough to discern that the shade of yellow adopted by defendant is somewhat darker than that of complainant, but that difference, like the absence of lettering, would not be likely to be observed by one who should not be cautioned to "beware of imitations." The cars are of different make, and are different in size and shape, but these differences would not be likely to be observed by patrons of complainant. It will also be observed that defendantdoes not controvert the averments of complainant's bill and affidavits, to the effect that the uniform of defendant is in appearance the same as the uniform used by complainant's drivers.
These specific differences in the cars are pointed out in detail in defendant's affidavits, but an inspection of the cars clearly discloses that by reason of the general appearance of defendant's car it will, in practical operation, necessarily be mistaken for one of the cars of complainant. In these circumstances should restraint be withheld until final hearing? I think not. No amount of testimony can change the resemblance of defendant's car to those operated by complainant, nor the resemblance of the uniforms of the drivers. Complainant has not shown that any passenger has yet been deceived, but defendant's yellow car had been operated but 20 days when the bill was filed, and such evidence is necessarily difficult, perhaps impossible of procurement. The situation here presented is similar to that in United Cigar Stores Co. v. United Confectioners, 92 N. J. Eq. 449, 113 A. 226, 17 A. L. R. 779, where restraint pendente lite was approved. Restraint pendente lite will be ordered. If defendant desire parol proofs to be taken, he may move for relief against the restraint, and I will hear the parol testimony of witnesses on behalf of the respective parties on the day noticed.