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Dimedio v. Camden Lumber & Millwork Co.

Decided: November 12, 1952.

B. DIMEDIO & SONS, INC., A NEW JERSEY CORPORATION, PLAINTIFF,
v.
CAMDEN LUMBER & MILLWORK CO., INC., A NEW JERSEY CORPORATION, DEFENDANT



Haneman, J.s.c.

Haneman

Plaintiff herein seeks to restrain the defendant from using the name "Camden Lumber & Millwork Co." and from using any other name or designation similar to that used by plaintiff in its business. The complaint alleges the following:

Since 1924 one Ben DiMedio has conducted a business under the title or style of Camden Millwork Co., which said business and name were transferred to plaintiff on June 30, 1950. As a result of said user, over the years the name has obtained a secondary meaning, and that having so preempted said name and having used the same since 1924, defendant's subsequent and recent use thereof should be enjoined.

Defendant not only denies the right of the plaintiff to obtain the relief here demanded, but seeks as well to enjoin the

plaintiff from using the name Camden Lumber & Millwork Co., Camden Millwork Co., or any variation thereof, upon the ground that it is entitled to the exclusive use of the name Camden Lumber & Millwork Co. as its corporate title, and that the plaintiff, as a corporation, has no right to assume or trade under any name other than its correct corporate title.

At the outset it must be recognized that words descriptive of qualities or attributes, generic designations, personal partnership, and corporate names, geographical terms, and the like, are "trade-names." Such words or associated words may by usage and popular acceptance acquire a secondary, special or trade meaning, as indicative of identification of goods, business or services and therefore entitle such user to protection against an unfair and deceptive usage by another. American Shops, Inc. v. American Fashion, &c., Inc. , 13 N.J. Super. 416 (App. Div. 1951); certification denied 7 N.J. 576 (1951).

The plaintiff, in order to succeed, must prove not only a prior use of the name, but also that the commercial employment of the descriptive words here in question, in the territory of his business, has infused them with such secondary meaning. It is not necessary for the plaintiff, to succeed, to prove that the use by the defendant of a name which interferes with the plaintiff's prior use, did so with the premeditated intent to injure the plaintiff or to deceive the public. The consequences of defendant's act predominate over the quality of his motive in the determination of this court. American Shops, Inc. v. American Fashion, &c., Inc., supra.

Having in mind the foregoing legal principles, it is necessary to assay the facts as adduced in the light thereof.

I find the following facts in connection therewith:

Since 1924 Ben DiMedio had operated a lumber and millwork business at 327 Pine Street, Camden, New Jersey. On or about June 30, 1950 said business was sold to B. DiMedio & Sons, Inc., a corporation composed of the said Ben DiMedio and members of his immediate family. Within the past

several years a second place of business was opened at 215 East Broad Street, Paulsboro, New Jersey.

The defendant did not know of the use by the plaintiff of the word "Camden" in connection with its business at the time of ...


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