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DRUG FAIR-COMMUNITY DRUG CO. v. DRUG FAIR (09/19/73)

decided: September 19, 1973.

DRUG FAIR-COMMUNITY DRUG CO., INC., APPELLANT,
v.
DRUG FAIR, INC.



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1965, No. 1652, in case of Drug Fair-Community Drug Co., Inc. v. Drug Fair, Inc.

COUNSEL

Edward Greer, with him Mesirov, Gelman, Jaffe & Levin, for appellant.

Ralph S. Snyder, with him C. Gary Wynkoop, and Schnader, Harrison, Segal & Lewis, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix.

Author: Nix

[ 453 Pa. Page 455]

The primary issue presented in this appeal is whether appellant, a foreign corporation with its principal place of business in Baltimore, Maryland, should be permitted to restrain appellee, Drug Fair, Inc. a Pennsylvania corporation with its principal place of business in Philadelphia, from doing business under its corporate

[ 453 Pa. Page 456]

    name on the ground that appellee's use of the name "Drug Fair" infringes appellant's rights in said name.

Appellant filed a complaint in equity to enjoin appellee from using the name "Drug Fair". A hearing was held on the complaint and the chancellor issued a decree nisi, denying appellant relief. Exceptions to the adjudication were argued before the court en banc which denied the same in an adjudication filed November 25, 1969. From the final decree thus entered, this appeal followed.

The facts as found by the chancellor and approved by the court en banc insofar as they are relevant to this appeal are as follows: Appellant operates a chain of ninety-four retail drug stores, selling a variety of goods in addition to pharmaceuticals throughout Virginia, Maryland, West Virginia and the District of Columbia. The name "Drug Fair" has been used by appellant in its business operations since the year 1951. Moreover, appellant has used the "Drug Fair" in advertising for approximately fifteen years in newspapers, trade magazines, radio, television and spends in excess of one million dollars ($1,000,000.00) per year on advertising. Further, the lower court found that appellant did not own or operate any stores in Pennsylvania*fn1 and in fact, appellant's only advertising in the Commonwealth was in the classified section of various news media for employment of pharmacists. It engaged in no consumer advertising of its products in Pennsylvania.

Appellee was incorporated in Pennsylvania, July 15, 1964, and registered under the Fictitious Corporate Name Act,*fn2 on or about July 29, 1964. It operates two retail drug stores in Philadelphia as Drug Fair, Inc. and sells a variety of goods in addition to pharmaceuticals.

[ 453 Pa. Page 457]

The lower court found that at the time of incorporation, appellee's principals were aware of other businesses trading under the name "Drug Fair" but were not aware of the nature or extent of that use and did not specifically know of appellant's chain. The court further found that appellant, through its attorney, first notified appellees of its interest in the name "Drug Fair" approximately six weeks after appellee was incorporated but delayed bringing ...


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