Suburban Press v. Philadelphia Suburban Publishing Co. , 227 Pa. 148 ( 1910 )

Opinion by

Mr. Justice Moschzisker,

February 14, 1910:

The appellant, a New Jersey corporation duly registered in Pennsylvania, with a place of business in Philadelphia, was restrained from using the words “Philadelphia Suburban Life” as the title of a monthly magazine published by it. The appellee, a New York corporation duly registered in Pennsylvania, with its principal place of business in the city of New York, is the publisher of a monthly magazine started in 1904, named “Suburban Life.” This periodical has a circulation of about 40,000 copies a month, of which nearly 4,000 copies are sold in Pennsylvania, and approximately one-half of that number distributed in Philadelphia and vicinity. The appellant was incorporated in 1909, and the first number of its magazine was issued in the month of September of that year. The trial judge finds that the magazine published by the appellant bears a striking resemblance to that published by the appellee in size, style, character of paper, illustrations and printed matter, and in the general scheme of the title-page, and that the great similarity of names, general appearance and subject-matter of the two magazines is by design and not by accident. The learned judge further finds: “It is therefore perfectly apparent that one object of the defendant was to imitate as nearly as possible the magazine or periodical published by the plaintiff, in general appearance and subject-matter of contents, as well as in name, and to thereby gain an unfair advantage over the plaintiff in its trade, and to reap the benefit of its years of labor, the skill and the money employed by the plaintiff and its predecessor in introducing its magazine and building up its business. It is also made clear by the evidence that the great similarity of the two periodicals, particularly in name, will tend to deceive, confuse and mislead the reading and advertising public.”

The trial judge saw and heard the witnesses and inspected the documentary evidence, and his findings will not be disturbed except for manifest error. After an examination of the evidence we cannot say that such is the case with respect to any of the findings. “There are two classes of cases involving judicial interference with the use of names: first, where the intent is to get an unfair and fraudulent share of another’s business; and, second, where the effect of defendant’s action, irrespective of his intent, is to produce confusion in the public mind and consequent loss to the plaintiff:” American Clay Manufacturing Company v. American Clay Manufacturing Company, 198 Pa. 189. The present case falls within both of these classes.

The decree is affirmed and the appeal is dismissed at the cost of the appellant