By the same reasoning, if descriptions are so general, or if the item allows the possibility of only one description, then an exactly-copied description would not be a substantive step toward establishing a case for unfair competition. See Kellogg Co. v. National Biscuit Co., 1938, 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. 73; Williamson v. Answer Phone of Jacksonville, Inc., 1960, Fla.App., 118 So.2d 248; Stevens Linen Works v. William John Don Co., 2 Cir. 1904, 127 F. 950. There is no indication in the record that Caravalla was so constrained. It is also lawful to refer to the prices of a competitor if such reference is only for the purposes of comparison and is truthful.
"The test is satisfied when it is shown by one seeking injunctive relief that, because of a similarity of tradenames, potential customers of the first appropriator of a tradename actually do business with a second appropriator under the mistaken impression that they are doing business with the first appropriator."); Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248, 251-52 (Fla. 1st DCA 1960) (recognizing that descriptive and generic words generally cannot be exclusively appropriated, and that where "intent to defraud the public" is alleged, a cause of action is stated); cf. Richard Store Co. v. Richard's Warehouse Sales Auction Gallery, Inc., 63 So.2d 502, 502 (Fla. 1953) (granting injunction where name "deceives the public and leads it to believe that the two corporations are the same"). Applying Addison, Shupe, and Tatem to the instant case, we conclude that the name FIRST SOUTHERN BANK is not entitled to protection without proof of having acquired a secondary meaning.
See Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors Southeast, Inc., 355 So.2d 853 (Fla. 3d DCA 1978). The petitioner contends that the cited case, Consolidated Electric Supply, Inc. v. Consolidated Electrical Distributors South-east, Inc., conflicts with Williamson v. Answer Phone of Jacksonville, 118 So.2d 248 (Fla. 1st DCA 1960), and therefore the instant opinion conflicts with another Florida appellate decision. The jurisdiction of this Court in this cause is controlled by section 3(b)(3) of article V of the Constitution of the State of Florida, as amended March 11, 1980, effective April 1, 1980, which provides that the Supreme Court: "May review any decision of a district court of appeal . . . that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law."
III. Count X, Aiding and Abetting Another Defendant's Breach of its Fiduciary Duty to MPThe trial court's order failed to articulate the grounds upon which it dismissed Count X. We will, therefore, state the elements of aiding and abetting the breach of another's fiduciary duty, which admittedly is an uncommon, and yet not an unheard of cause of action, see Pearlman v. Alexis, No. 09-20865-CIV, 2009 WL 3161830, *5 (S.D. Fla. Sept. 25, 2009) (noting that Florida law recognizes the tort of aiding and abetting a breach of another's fiduciary duty); Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248, 250 (Fla. 1st DCA 1960) (reversing the trial court's order dismissing Williamson's complaint, in which she alleged that the telephone company had changed a classification title "for the purpose of aiding and abetting [the other] defendants—in the accomplishment of their intention and purpose to defraud the public and injure the plaintiff ."), and then examine the allegations contained in the operative complaint to determine whether MP satisfied the pleading requirements. To establish a cause of action for aiding and abetting another defendant's breach of its fiduciary duty to the plaintiff, the plaintiff must allege: "(1) a fiduciary duty on the part of the wrongdoer; (2) a breach of fiduciary duty; (3) knowledge of the breach by the alleged aider and abettor; and (4) the aider and abettor's substantial assistance or encouragement of the wrongdoing."
Count X, Aiding and Abetting Another Defendant's Breach of its Fiduciary Duty to MP The trial court's order failed to articulate the grounds upon which it dismissed Count X. I will, therefore, state the elements of aiding and abetting the breach of another's fiduciary duty, which admittedly is an uncommon, and yet not an unheard of cause of action, see Pearlman v. Alexis, No. 09-20865-CIV, 2009 WL 3161830, *5 (S.D. Fla. Sept. 25, 2009) (noting that Florida law recognizes the tort of aiding and abetting a breach of another's fiduciary duty); Williamson v. Answer Phone of Jacksonville, Inc., 118 So. 2d 248, 250 (Fla. 1st DCA 1960) (reversing the trial court's order dismissing Williamson's complaint, in which she alleged that the telephone company had changed a classification title "for the purpose of aiding and abetting [the other] defendants—in the accomplishment of their intention and purpose to defraud the public and injure the plaintiff.") I will then examine the allegations contained in the operative complaint to determine whether MP satisfied the pleading requirements. To establish a cause of action for aiding and abetting another defendant's breach of its fiduciary duty to the plaintiff, the plaintiff must allege: "(1) a fiduciary duty on the part of the wrongdoer; (2) a breach of fiduciary duty; (3) knowledge of the breach by the alleged aider and abettor; and (4) the aider and abettor's substantial assistance or encouragement of the wrongdoing."
First, the name "patria", which in Spanish means "homeland", is not subject to being found to be generic as a matter of law. Florida Ventilated Awning Co., Inc. v. Dickson, 67 So.2d 215 (Fla. 1953); Quality Courts United, Inc. v. Jones, 59 So.2d 20 (Fla. 1952); American Bank of Merritt Island v. First American Bank and Trust, 455 So.2d 443 (Fla. 5th DCA 1984); Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248 (Fla. 1st DCA 1960). Second, the record discloses material issues of fact on abandonment by the parties, and therefore it was error to enter a summary judgment. Moore v. Morris, 475 So.2d 666 (Fla. 1985); Florida East Coast Railway Company v. Metropolitan Dade County, 438 So.2d 978 (Fla. 3d DCA 1983); Levey v. Getelman, 408 So.2d 663 (Fla. 3d DCA 1981).
See 74 Am.Jur.2d, Trademarks and Tradenames, §§ 64 et seq. (1974); 87 C.J.S., Trade-Marks, etc. §§ 90, 107b. (1954). See also Quality Courts United, Inc. v. Jones, 59 So.2d 20 (Fla. 1952); Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248 (Fla. 1st DCA 1960); Hoyt, Trade Names: Protection Accorded Under Secondary Meaning Doctrine, 6 U.Fla.L.Rev. 256 (1953). (3) the defendant has commenced, or intends to commence, the use of an identical or confusingly similar tradename (or mark, etc.) to indicate or identify similar services rendered (or similar goods marketed) by it in competition with plaintiff in the same trade area in which the plaintiff has already established its tradename (or mark, etc.) and
A generic term such as "OM" is not ordinarily susceptible of exclusive appropriation by an individual as a trade name except where by usage the term acquires a secondary or special meaning as indicating or identifying the goods or business of the user as distinguished from its common or general meaning; in such cases, the user is entitled to protection against subsequent unfair use of such terms by another. Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248 (Fla.1st DCA 1960). In an action to enjoin the infringement or unfair competitive use of a trade name, customer confusion is the gist of the actionable wrong and to invoke equitable relief, the plaintiff must show that there is competition.
Webb's City, Inc. v. Bell Bakeries, Inc., 226 F.2d 700, 702 (5th Cir. 1955). Williamson v. Answer Phone of Jacksonville, Inc. (Fla.App. 1960), 118 So.2d 248, 251. Based upon the foregoing principles the following practices have been held to result in the likelihood of confusion in the minds of the public and to constitute unfair competition entitling the first user of a trademark to protection against the use of the same or similar trademark by a subsequent user.