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BRODY'S v. BRODY BROTHERS (12/30/82)

filed: December 30, 1982.

BRODY'S, INC., TRADING AS BRODY'S, APPELLANT,
v.
BRODY BROTHERS, INC., TRADING AS BRODY'S



No. 370 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Clarion County, 1979, No. 7 - Equity.

COUNSEL

Benjamin G. McFate, Oil City, for appellant.

Wayne A. Kablack, Indiana, for appellee.

Price, Cavanaugh and Watkins, JJ.

Author: Price

[ 308 Pa. Super. Page 419]

This appeal is from an order that both cancelled appellant Brody's, Incorporated's Pennsylvania registration of the trade name "Brody's", and refused to permanently enjoin appellee Brody Brother's, Incorporated from using the same trade name.

Appellant Brody's, Incorporated ("Oil City Brody's") is a Pennsylvania corporation with its principal place of business in Oil City, Pennsylvania, where since 1939 it has operated a women's and children's clothing store under the name "Brody's". Appellee Brody Brothers, Incorporated ("Indiana Brody's"), also a Pennsylvania corporation, has operated a clothing store for men, women and children in Indiana, Pennsylvania since 1913, also using the name "Brody's". The principals in appellee and appellant corporations are members of the same Brody family responsible for founding both independent entities in the early part of this century. Oil City and Indiana are Western Pennsylvania cities located about 90 miles apart.

The present controversy arises out of appellee Indiana Brody's decision to open a new "Brody's" store in the

[ 308 Pa. Super. Page 420]

Clarion Mall. The Clarion Mall, near Clarion, Pennsylvania, is located approximately 25 miles southeast of Oil City, and about 60 miles north of Indiana. Oil City Brody's moved for a preliminary injunction alleging that use of the "Brody's" trade name in such close proximity to its own store would constitute trade mark infringement and unfair competition. The motion was denied because the mall was not scheduled to open soon enough to cause any immediate harm. Oil City Brody's subsequent motion for a permanent injunction was granted, but the full relief requested was not given. While Oil City Brody's had sought to prevent any use of the term "Brody's" in connection with the Clarion Mall Store, the trial court expressly reserved to appellee the right to use its full corporate name, "Brody Brothers, Inc." but prohibited any use or emphasis of the single term "Brody" or "Brody's". Each party filed exceptions to this order, and upon rehearing, the court below dissolved the order and on April 7, 1980 entered a new order denying the injunction, and allowing appellee to use the trade name "Brody's" for its Clarion store.

Oil City Brody's appeals from the April 7 order, asserting two grounds of error in the trial court's denial of injunctive relief. First appellant advances trade name rights inherent in its December 20, 1978 registration of the name "Brody's", in accordance with the Act of May 29, 1956, P.L. (1955) 1855, § 1, 73 P.S. § 15, and argues that the court below improperly cancelled the registration. Second, appellant contends that an injunction is mandated under Pennsylvania's common law of trade marks and unfair competition. We disagree on both counts and affirm.

The lower court correctly precluded Oil City Brody's assertion of statutory rights by canceling its registration of the trade name "Brody's",*fn1 in accordance with 73 P.S. § 20.

The statute providing for registration of trade marks and service marks in Pennsylvania requires that all applications for registration must ...


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