Fish v. Koldkist Beverage Ice
Fish v. Koldkist Beverage Ice
Opinion of the Court
This is a trade name case.
Housewarmers Oil, which has been operating in the Portland area since 1977, began selling oil in Clark County in 1985. Three years later, the Fishes brought this action, contending that they had appropriated the name House-warmers as a trade name in the early 1950's. The trial court's factual determination that the Fishes had done so is the central focus of the appellant's challenge and of our inquiry. We conclude that, although the Fishes indisputably used the name, the trial court erred in finding that such use was as a trade name.
A trade name serves the singular purpose of identifying the individuality of a business. See Bishop v. Hanenburg, 39 Wn. App. 734, 737, 695 P.2d 607 (1985); Tradewell Stores v. T.B.&M., Inc., 7 Wn. App. 424, 432, 500 P.2d 1290 (1972). See also 87 C.J.S. Trademarks § 8, at 237 (1954). The requirement of prior appropriation, essential to protect
The record in this case shows that the Fishes steadfastly identified their business as Columbia Oil & Burner Company, not as Housewarmers. They offered as exhibits several advertisements and brochures; none proved their claim. Although each exhibit used Housewarmer or Housewarmers in some way, each prominently displayed the name Columbia Oil & Burner Company, directly followed by the business address and telephone number. None of the exhibits would tend to lead a consumer to believe that the business name was Housewarmers.
As the Fishes used it, the name Housewarmers was more likely associated in the public mind with Chevron Oil Company, the Fishes' supplier. Mr. Fish testified that the word was devised by Standard Oil Company, Chevron's predecessor, for use in its distributor's advertising. Indeed, the Fishes always used the word in juxtaposition with the Chevron logo, which tended to identify it as possibly a Chevron trademark, not as the Fishes' business name.
Reversed.
Alexander and Morgan, JJ., concur.
The respondents did not choose to pursue any theory of unfair competition beyond their claim that the appellants were improperly using the name House-warmers as part of their business name. Also, neither side argues the suitability of Housewarmers for appropriation as a trade name identifying a heating oil business. See Tradewell Stores, Inc. v. T.B.&M., Inc., 7 Wn. App. 424, 428, 500 P.2d 1290 (1972) (discussing appropriability of words as trade name). Accordingly, the only issue we consider is whether the respondents appropriated and used House-warmers as a trade name in Washington before the appellants did.
One typical brochure was headed "9 REASONS WHY YOU WILL SAVE AND HAVE MORE COMFORT TRADING WITH COLUMBIA OIL AND BURNER". (Italics ours.)
The fact that the Pishes registered the name with the Secretary of State has no bearing on whether they acquired trade name rights by prior appropriation. Foss v. Culbertson, 17 Wn.2d 610,136 P.2d 711 (1943).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.