1. Since the petition failed to allege that a secondary meaning had attached to the word "multiple" in its corporate name, and there not being such similarity between the name of the defendant and that of the plaintiff as to confuse a reasonably cautious number of the public, the trial judge erred in overruling the general demurrer to the petition.
2. The grounds of the motion for new trial need not be passed upon.
that the plaintiff Listing Service had been incorporated since 1957 under its present name; that it had expended substantial sums of money in advertising and conducting business under its name, had registered "MLS" as a trade name and had become widely known in the Fulton-DeKalb area as providing a service whereby several independent member realty brokers utilized their joint efforts to effectuate sales of realty; that "Multiple Listing Service" has acquired a special meaning to the public as importing a listing service whereby the customer received the benefit of several brokers cooperating in the sale or purchase of real estate; that no other corporation or organization in the Atlanta area includes the word "multiple" in its corporate or trade name; that the word "multiple" in real estate transactions describes the method whereby a number of real estate brokers combine their efforts in real estate transactions; that in the minds of the public "multiple" connotes that a person dealing with such service shall receive such described combined efforts; that, as a result of national recognition, persons coming into the State as well as residents recognize the word "multiple" to indicate the combined efforts of independent realtors; that the defendant is not a member of any multiple listing service but merely a real estate brokerage corporation; that the defendant has deliberately adopted "multiple" in order to unfairly compete with the plaintiff by misleading the public and thus trading upon the established good will of the plaintiff Listing Service; that a sales representative of the defendant, with its knowledge and authority, represented to one of the plaintiff's customers that the defendant was a member of the plaintiff's corporation; that this representation was false and made for the purpose of trading on the plaintiff's good will and with the intent of palming off the defendant's services as being those of the plaintiff.
The further averments of the petition were: that the Realty Company's name is deceptive and confusingly similar to the plaintiff's and has resulted in a great amount of confusion since its inception; that the defendant commenced utilizing its name in advertisements around February 1963, at which time the plaintiff notified the defendant that its name was confusingly similar to the plaintiff's and was misleading many members of the public into believing the defendant was a member of the plaintiff's multiple listing service; that the defendant refused to discontinue the use of its name; that the plaintiff has no adequate remedy at law and "prays for a temporary and permanent injunction" to prevent the defendant from using the name Multiple Realty, Inc., or any name inferring the defendant is a multiple listing service.
The defendant filed its general and special demurrers. The trial judge overruled all the general and all the special demurrers with one exception: he sustained a special demurrer to one paragraph of the petition, which paragraph has been deleted from this recitation of the averments of the petition.
The defendant also answered, denying the material allegations of the petition and further alleging: that the defendant had been duly and properly incorporated; that it had expended substantial sums of money in advertising its name; that it had no intent to mislead the public or other realty firms as to its name, purpose or nature of business; that at no time has it misled the public into believing it was a member of the Listing Service or ever used the initials "MLS" to indicate that it is a member of the Listing Service; that comparing its charter with that of the Listing Service showed it not to be a multiple listing service but a realty company; that the plaintiff failed to exercise diligence in making its claim and hence was guilty of laches.
The cause came on for trial before a jury which returned a verdict for the plaintiff. The trial judge then entered a judgment on the verdict permanently enjoining the Realty Company from using the word "multiple" or any name confusingly similar to the plaintiff's as part of the Realty Company's name, or in such a manner as to mislead the public into falsely believing that the defendant is associated with, or a part of, the plaintiff in advertisements or other promotional media, or falsely holding itself out as being a part of or associated with the multiple listing service offered by the plaintiff.
In the present case the plaintiff contends that the defendant's use of the word "multiple" in its corporate name is designed to mislead the public and trade upon the plaintiff's good will and reputation. On the other hand, the defendant contends that the word "multiple" is a descriptive term which may not be exclusively appropriated.
The rule is well established that a generic or descriptive word is incapable of exclusive appropriation by a trader. Fraser v. Singer, 211 Ga. 26 (83 SE2d 599)
; Saunders System Atlanta Co. v. Drive It Yourself Co., 158 Ga. 1
, 7 (123 SE 132
); Womble v. Parker, 208 Ga. 378 (1) (67 SE2d 133)
. Such words are publici juris (that is, belong as a matter of right to the public as a whole) in their primary sense and their use by others is damnum absque injuria for which no action lies. 87 CJS 345, Trademarks 98. As pointed out in 52 AmJur 545, Trademarks, 60: "a word or term designating or describing a trade or occupation, indicating that a particular class of goods is dealt in, or a particular business carried on, cannot be exclusively appropriated by one as a trademark or trade name. The reason for this is that if one person could acquire an exclusive right thus to designate his place of business, no others engaged in the same business could properly so designate theirs." Georgia has followed this principle. In Saunders System Atlanta Co. v. Drive It Yourself Co., 158 Ga. 1 (2)
, supra, this court held: "The general rule is that a manufacturer or dealer cannot exclusively appropriate as a trade-name words which, according to their primary meaning, may with equal truth and right be employed by others for the same purpose."
This is the rationale of the well-known doctrine of secondary meaning which has been adopted by the Georgia courts and by the vast majority of jurisdictions in this country. However, in such situation in order to claim a secondary meaning has attached to the use of a word it is incumbent on the plaintiff to allege facts to show such association by the public with its name. Gano v. Gano, 203 Ga. 637
, 641 (47 SE2d 741
); National Brands Stores v. Muse & Assoc., 183 Ga. 88
, 89 (1) (187 SE 84
); Pearl Optical v. Pearle Optical of Ga., 218 Ga. 701
, 703 (1) (130 SE2d 223
Here the plaintiff alleges that "multiple" and its corporate name "Multiple Listing Service" are a descriptive word and words indicating the type of business the corporation is engaged in, respectively; that both have a very definite meaning in the business of real estate. Hence, without more, "multiple" would not be such a word as is entitled to protection or exclusive use by one trader. As a prerequisite to establishing a secondary meaning to the word "multiple" the plaintiff must allege that the public has come to associate such with the plaintiff's business. The plaintiff's allegations indicate that the public has associated "multiple" with the general business of a multiple listing service, but utterly fails to show that customers, actual, prospective, potential or otherwise, have come to associate "multiple" with the particular business of the plaintiff. It is thus apparent that the plaintiff neglected and omitted to allege such standing as to enable it to bring an action seeking to prevent the defendant from using a similar name.
Moreover, the defendant urges that the two corporate names are not so similar that the general public mistakes, or might mistake, one for the other. We find this contention also meritorious.
The applicable rule is: "if a reasonably cautious person would mistakenly confuse the two trade names of the parties and believe that the separate businesses had a common ownership, then the imitation, if other legal requisites are present, would be unlawful." Gordy v. Dunwody, 209 Ga. 627
, 631 (74 SE2d 886
); Atlanta Paper Co. v. Jacksonville Paper Co., 184 Ga. 205
, 213 (190 SE 777
). The corporate name of the defendant as a whole is not identical to that of the plaintiff as a whole. The only similarity or resemblance is in the word "multiple." As in the case of the word "industrial" (Industrial Investment Co. v. Mitchell, 164 Ga. 437
, 138 SE 908
), "first" (First Federal Sav. & Loan Assn. v. First Finance & Thrift Co., 207 Ga. 695
, 64 SE2d 58
) and "casual" (Fraser v. Singer, 211 Ga. 26
, supra), the word "multiple" is not so similar as to be such a colorable imitation of the plaintiff's corporate name as would lead the public in the exercise of ordinary care to believe the Realty Company's name is that of the Listing Company. See in this connection Gano v. Gano, 203 Ga. 637
, supra; East Ga. Motor Club v. AAA Finance Co., 212 Ga. 408 (93 SE2d 337)
The trial judge erred in overruling the general demurrer to the petition.
2. In view of the ruling in Division 1 it is not necessary to pass upon the grounds of the motion for new trial.
Judgment reversed. All the Justices concur.