While it is not necessary to show that any particular person has actually been deceived by a defendant's actions, one could alternatively "show that such deception will be the natural and probable result of [a] defendant's acts." Burns v. Schotz , 343 Mich. 153, 156, 72 N.W.2d 149 (1955) (quotation marks and citation omitted). Put another way, "if there is no probability of deception, there is no unfair competition."
The Michigan Supreme Court has been reluctant to extend injunctive relief to a party's field of potential expansion or in response to a plaintiff's contention that the defendant's business might be operated in the future in such a manner as to deceive the public. Good Housekeeping Shop v Smitter, 254 Mich. 592, 597-598; 236 N.W. 872 (1931), Burns v Schotz, 343 Mich. 153, 158; 72 N.W.2d 149 (1955), The Fair โ South Flint Plaza, Inc v Shoppers Fair of Flint, Inc, 358 Mich. 640, 645; 101 N.W.2d 342 (1960). There was evidence of plaintiff's indefinite plans for expansion beyond the three counties (Macomb, Oakland and Wayne) where it presently has stores.
Defendant says that the oil company cannot be allowed to have exclusive use of the term Boron as against the entire world unless it can show that there is either direct competition between plaintiff and defendant or actual confusion in the minds of the public. Ordinarily, one simply cannot be found guilty of unfair competition when the facts indicate no competition. Good Housekeeping Shop v Smitter, 254 Mich. 592; 236 N.W. 872 (1931); Burns v Schotz, 343 Mich. 153; 72 N.W.2d 149 (1955); Ex-Cell-O Corp v Sage, 347 Mich. 210; 79 N.W.2d 497 (1956). There is, however, a longstanding exception to this rule where an outstanding and widely known name, made valuable by the owner โ Hudson's Bay Company โ is pirated.
Peninsular Stove Co. v. Augst, 288 Mich. 465, 285 N.W. 24, 26 (1939) (citation omitted). Among the elements that a party must prove are a likelihood of confusion to the public, Wills v. Alpine Valley Ski Area, Inc., 369 Mich. 23, 118 N.W.2d 954, 956 (1963), deception that is the probable result of the defendant's actions, Burns v. Schotz, 343 Mich. 153, 72 N.W.2d 149, 151 (1955), and actual competition between the parties, Good Housekeeping Shop v. Smitter, 254 Mich. 592, 236 N.W. 872, 873 (1931). Given the overlap in required elements between the Michigan common-law analysis and that under the Lanham Act, courts have noted that the "likelihood of confusion" merits analysis is the same for both.
Motor Improvements, Inc. v. A.C. Sparg Plug Co., 80 F.2d 385, 386 (6th Cir.), cert. denied, 298 U.S. 671, 56 S.Ct. 939, 80 L.Ed. 1394 (1936) quoted in Clairol, Inc. v. Boston Discount Center of Berkley, Inc., 608 F.2d 1114 (6th Cir. 1979). In his decision, the District Judge relied primarily upon Michigan law in this diversity case citing such cases as Federal Engineering Co., Inc. v. Grieves, 315 Mich. 326, 332, 24 N.W.2d 138 (1946); Burns v. Schotz, 343 Mich. 153, 156, 72 N.W.2d 149 (1955); Schwannecke v. Genesee Coal Ice Co., 262 Mich. 624, 627, 247 N.W. 761 (1933); Boron Oil Co. v. Callanan, 50 Mich. App. 580, 584-85, 213 N.W.2d 836 (1973). He quoted the traditional unfair competition rule from the Schwannecke case as follows:
146 U.S.P.Q. at 730-31 (footnote omitted). While Michigan law, especially in earlier cases, emphasized "actual competition" as a prerequisite in unfair competition cases, Good Housekeeping Shop v. Smitter, 254 Mich. 592, 236 N.W. 872, 873 (1931); Burns v. Schotz, 343 Mich. 153, 72 N.W.2d 149, 151 (1955), the parties do not dispute Judge Kaess's observation in his opinion: Each defendant acknowledges that he has sold, and is continuing to sell, the salon product on the retail market in competition with Clairol's retail product.
An unfair competition claim in Michigan, however, does require that the plaintiff be in competition with the defendant. "[I]n order to prove unfair competition there must be actual competition shown from specific instances or as a natural tendency of defendant's act," Burns v. Schotz, 343 Mich. 153, 157, 72 N.W.2d 149 (1955), citing Good Housekeeping Shop, 254 Mich. at 596. "[O]ne simply cannot be found guilty of unfair competition when the facts indicate no competition."
Peninsular Stove Co. v. Augst, 288 Mich. 465, 285 N.W. 24 (1939). There are numerous Michigan cases, like the one presently before this court, in which the Michigan Supreme Court relied solely upon the state law common law doctrine of unfair competition to analyze claims brought to enjoin a competitor from selling similar services or goods under a nearly identical name. E.g., Wills v. Alpine Valley Ski Area, Inc., 369 Mich. 23, 118 N.W.2d 954 (1963); Burns v. Schotz, 343 Mich. 153, 72 N.W.2d 149 (1955); Peninsular Stove Co., supra; Good Housekeeping Shop v. Smitter, 254 Mich. 592, 236 N.W. 872 (1931). It is clear that the state law doctrine of unfair competition is a separate and independent claim distinguishable from a federal trademark infringement or unfair competition claim brought pursuant to the Lanham Act, 15 U.S.C. ยง 1114 and 1125(a).
But either actual or probable deception and confusion must be shown, for if there is no probability of deception, there is no unfair competition." Burns v. Schotz , 343 Mich. 153, 72 N.W.2d 149, 151 (1955) (citation omitted). The Court concludes that it has subject matter jurisdiction over this claim.
Burns v. Schotz, 72 N.W.2d 149, 151 (Mich. 1955) (citation omitted).