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WHITE'S WIG IMPORTS v. WIGMASTER'S IMPORT COMPANY, LTD.
26065.
Injunction. Fulton Superior Court. Before Judge Alverson.
MOBLEY, Presiding Justice.
The evidence did not show that the trade-mark of the plaintiff, which contained only geographic and generic words, had been used by it so long and exclusively that it had acquired a secondary meaning authorizing its protection against unfair competition by the use of a similar trade-mark, and it was error to grant him interlocutory injunction restraining the defendant. from using its trade-mark.
This appeal is from a judgment granting an interlocutory injunction.
Wigmaster's Import Company, Limited, brought an action for injunction against White's Wig Imports, alleging that the plaintiff has been selling hair products bearing the label, "Mode de Paris, France," since about January 31, 1967, and that it learned in January, 1970, that the defendant has fraudulently encroached upon its business by marketing a similar product bearing a trade-mark, "Mode de France." Temporary restraining order was granted, and after a hearing, an interlocutory injunction was granted, restraining the defendant from using the trade-mark, "Mode de France."
"Any attempt to encroach upon the business of a trader, or other person, by the use of similar trade-marks, names, or devices, with the intention of deceiving and misleading the public, is a fraud for which equity will grant relief." Code 37-712.
There is no evidence in the present record authorizing a determination that the trade-mark of the plaintiff, "Mode de Paris, France," has been used so long and exclusively that it has acquired a secondary meaning, designating the plaintiff's products. The plaintiff alleged that it had used the label approximately three years when it learned that the defendant was using a similar label, "Mode de France." There is no evidence as to the date the defendant began using its label.
An officer of the plaintiff stated that it had invested "a substantial amount of money" in advertising hairgoods under its label, but there is no evidence indicating that this advertising for such a short period of time has made the public consider the trade-mark as designating the plaintiff's products. There was no evidence that the defendant had used any unfair practices to deceive the public into thinking that its goals were those of the plaintiff.
The record shows that the wigs sold by both parties are imported from Korea. There is no evidence to show that the plaintiff has any better right than the defendant to use a label denoting that its wigs are in a style originating in France, or Paris, France, which has long had the reputation of being a fashion center.
The evidence before the trial judge did not authorize the grant of an interlocutory injunction, restraining the defendant from using its label.
ARGUED SEPTEMBER 17, 1970 -- DECIDED OCTOBER 8, 1970.
Friday May 22 17:16 EDT


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