APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.
Messrs. Favour & Baker, for Appellant.
Messrs. Moore & Shimmel, for Appellees.
[40 Ariz. 321] LOCKWOOD, J.
This is an action by the Bank of Arizona, a banking corporation, hereinafter called plaintiff, against The Arizona Bank, a banking corporation, hereinafter called defendant, seeking to enjoin the latter from using in any manner the corporate name "The Arizona Bank" or any corporate name containing the words "Bank of Arizona," not modified by some other distinguishing words.
The case was tried to the court without a jury and the relief sought for denied, whereupon the matter was brought before us for review.
This suit is, in substance, one for the purpose of restraining unfair competition, and is governed by the rules applying to such an action. The unfair competition alleged is the use by defendant in its banking business of a name so similar to that of plaintiff that confusion will arise among the customers, present and prospective, of the two banks, so as to deprive plaintiff of the valuable good will [40 Ariz. 322] attached to the use of its corporate name and to transfer a large part of such good will to defendant.
The question of unfair competition has been before the courts many times, and much has been said in regard to the nature of the action and the essentials thereof. We think as good an explanation as any is found in the recent case of Federal Securities Co. v. Federal Securities Corp., 129 Or. 375, 66 A.L.R. 934, 276 P. 1100, which was also to enjoin the use of a corporate name. After reviewing a large number of the leading cases the court said:
"We believe that they justify the conclusion that primarily it is not the name which is protected, but the business; the latter is guarded against injury through a fraudulent traffic in its name by later comers. The business
will be protected whether conducted in the name of an individual or that of a corporation; whether the name is fanciful or not. But, to justify relief, the circumstances must be such that it appears that the business will suffer from a deceptive use of its name, or that by reason of a similar act of unfair competition, the public will be imposed upon. . . .
"The ultimate question is always whether trade is being unfairly diverted, and whether the public is being cheated into the purchase of something which it is not in fact getting; the courts interfere solely to prevent deception. The law recognizes a right of property in a name, and generally permits each to conduct his business in his own name; these rights are subject to the limitation that they shall not be so dishonestly exercised that the public will be misled as to the identity of a business or the source of a piece of merchandise. The sole distinction between a corporate and an individual name, in the application of these principles, is that a second incorporator comes to the name not unconsciously, but by choice, and that he need not select the name of an already well-established business. Should he do so, he thereby will supply evidence that he intends to palm off his goods as those of the first appropriator. And, as is suggested [40 Ariz. 323] in Newby v. Oregon Cent. Ry. Co., supra [Fed. Cas. No. 10144, Deady, 609], 'although not technically a trade-mark, the authorities are in favor of holding that a corporate name deserves the same consideration as a trade-mark.' The injury guarded against is two-fold: (1) Injury to the public by having palmed off upon it a spurious article believing it to be the product of the old established firm in which it reposes confidence; (2) injury to the defrauded corporation by having its trade diverted to the newcomer." (Italics ours.)
It will be noted that there are two injuries to be guarded against, one to the public and the other to the defrauded corporation. There is no complaint in the present case that the general public is being injured. The wrong set up is the injury to the plaintiff.
With these general principles before us, let us consider the facts in the case at bar, for it is obvious on a careful examination of the cases that there is usually very little dispute as to the law, the ...