[3] Since the decision in Academy of Motion Picture Arts Sciences v. Benson; 15 Cal.2d 685 [ 104 P.2d 650], it is established, as the respondent concedes, that injunctive relief against the unfair use of a trade name may be obtained in situations other than where the parties are in direct competition. ( MacSweeney Enterprises, Inc. v. Tarantino,supra at 106 Cal.App.2d 513; Johnston v. 20th Century-FoxFilm Corp., 82 Cal.App.2d 796, 818 [ 187 P.2d 474]; Winfield v. Charles, 77 Cal.App.2d 64, 70-71 [ 175 P.2d 69]; see 40 Cal.L.Rev. 571; contra: Yellow Cab Co. of San Diego v. Sachs, 191 Cal. 238 [ 216 P. 33, 28 A.L.R. 105]; Dunston v. LosAngeles Van S. Co., 165 Cal. 89 [ 131 P. 115], and cases cited; Weatherford v. Eytchison, 90 Cal.App.2d 379 [ 202 P.2d 1040]; Scutt v. Bassett, 86 Cal.App.2d 373, 376 [ 194 P.2d 781].) The basis of relief in such circumstances is the possibility of injury to the reputation and good will of the business of the prior user from an identification of it in the minds of the public with the source of the second user's goods or services.
Emphasis is now placed upon the word "unfair" rather than on "competition." ( MacSweeney Enterprises v. Tarantino (1951) 106 Cal.App.2d 504, 513 [ 235 P.2d 266]; Winfield v. Charles (1946) 77 Cal.App.2d 64, 70 [ 175 P.2d 69].) Hereafter referred to merely as "Slenderella."
'" (Emphasis supplied.) Again, in Winfield v. Charles, 77 Cal.App.2d 64, 70, 175 P.2d 69, 74, the court reached the very heart of the problem when it observed: "Plaintiff has established a reputation for reliability and meritorious products. If articles which are not produced by him are attributed to him or associated with his name, the injury is obvious.
"If articles which are not produced by him are attributed to him or associated with his name, the injury is obvious." Winfield v. Charles, 1946, 77 Cal.App.2d 64, 70, 175 P.2d 69, 74. The injury is "`from a representation to the public that [he] produces a product which [he] does not in fact produce and over which [he] has no control'."
[3] However, where a business name incorporating the name of a person has acquired a secondary meaning, the subsequent use of that name by another person which is calculated to deceive and confuse the public, although it be the name of the latter, will be enjoined under the law which prohibits unfair competition. ( Academy of Motion Picture etc. Sciences v. Benson, 15 Cal.2d 685, 688-690 [ 104 P.2d 650]; Hair v. McGuire, 188 Cal.App.2d 348, 352-353 [ 10 Cal.Rptr. 414]; MacSweeney Enterprises Inc. v. Tarantino, 106 Cal.App.2d 504, 510 [ 235 P.2d 266]; Jackman v. Mau, 78 Cal.App.2d 234, 239 [ 177 P.2d 599]; Winfield v. Charles, 77 Cal.App.2d 64, 70 [ 175 P.2d 69]; Hoyt Heater Co. v. Hoyt, supra, 68 Cal.App.2d 523, 527; J.A. Dougherty's Sons v. Dougherty, 36 F. Supp. 149, 151.) [4] Such secondary meaning grows out of long association of the name with the business, and thereby becomes the name of the business as such; is acquired when the name and the business become synonymous in the public mind; and submerges the primary meaning of the name as a word identifying a person, in favor of its meaning as a word identifying that business.
The court also concluded that while "actual or direct competition" was not indispensable to injunctive relief, it was a factor to be taken into consideration in determining whether such relief should be granted, and that defendant's good faith and bona fide reason for the use of the name adopted were also factors to be considered. A personal name or surname may acquire a secondary meaning and become a trade name. Madison v. LaSene, 44 Wn.2d 546, 268 P.2d 1006, 44 A.L.R.2d 1145 (1954); MacSweeney Enterprises v. Tarantino, 106 Cal.App.2d 504, 235 P.2d 266 (1951); Winfield v. Charles, 77 Cal.App.2d 64, 175 P.2d 69 (1946); Howards Clothes v. Howard Clothes Corp., 236 Minn. 291, 52 N.W.2d 753 (1952); Stern Furniture Co. v. Stern (Ohio App.) 83 N.E.2d 804 (1948); Hugo Stein Cloak Co. v. S.B. Stein Son, 58 Ohio App. 377, 16 N.E.2d 609 (1937); Brooks Bros. v. Brooks Clothing of Cal., 60 F. Supp. 442 (S.D.Cal. 1945). When such a name has become established in a market area as a trade name with a secondary meaning, a subsequent user may not use that name or a deceptively similar name in the same area, even though it be his personal name, in a manner harmful to the first user, or which is likely to mislead or confuse the public in dealing with either.
If the evidence supports an implied finding that injunctive relief pendente lite is required in order to prevent probable irreparable injury, a reviewing court may not overturn the exercise of such discretion. (See Winfield v. Charles (1946) 77 Cal.App.2d 64, 70 [ 175 P.2d 69]; Sun-Maid RaisinGrowers v. Mosesian (1927) 84 Cal.App. 485, 497 [ 258 P. 630]; see generally 2 Witkin, Cal. Procedure (2d ed. 1970) Professional Remedies, § 80, pp. 1518-1519.) Guided by such principles, we examine the merits of the appeal.
(Cf. Winfield v. Charles, 77 Cal.App.2d 64, 70 [ 175 P.2d 69]; Safeway Stores v. Rudner, 246 F.2d 826; Safeway Stores v. Dunnell, 172 F.2d 649; see Yale Electric Corp. v. Robertson, 26 F.2d 972, 973-974.)
In the law of unfair competition it is the likelihood or probability of public deception that forms the acid test. ( Winfield v. Charles, 77 Cal.App.2d 64 [ 175 P.2d 69]; Ojala v. Bohlin, supra.) A second basis for the decision rendered by the trial court is set out in the statute, to wit: Use of the advertising slogan employed here is manifestly unfair to the plaintiff.
This development of the law is clearly reflected in California by the legislative enactments noted, supra, and by judicial decision in the extension of equitable relief to situations beyond the scope of purely business competition. ( Athens Lodge No. 70 v. Wilson, 117 Cal.App.2d 322 [ 255 P.2d 482]; Academy of Motion Picture Arts Sciences v. Benson, 15 Cal.2d 685 [ 104 P.2d 650]; Jackman v. Mau, 78 Cal.App.2d 234 [ 177 P.2d 599]; Winfield v. Charles, 77 Cal.App.2d 64 [ 175 P.2d 69]; Schwartz v. Slenderella Systems of Calif., 43 Cal.2d 107 [ 271 P.2d 857]; MacSweeney Enterprises, Inc. v. Tarantino, 106 Cal.App.2d 504 [ 235 P.2d 266].) In the Athens Lodge case it was contended that section 3369 was limited to unfair business competition and could not include unfair competition against a fraternal organization.