Moncrief Furnace Models
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Metzger - 'Thermoflo' furnaces with model number 1401 first appear in 1967 and run through 1981. Model numbers that end with 'S' run from 1978 through 1981. A forum determined that Model # 1204-E13 (not ending in “S” Serial# 12776 was made between 1978 and 1982 Moncrief – See Luxaire. I have a moncrief furnace model sh 75. The blower never shuts off. The heat comes on and goes off with temp but never shuts down the blower. It is killing my electric. There is a box in side that says manual and auto. It has been on auto for yrs. I just put it on manual i so far see no difference.

Henry Furnace Co. v. Kappelman, 108 N.E.2d 839 (Ohio Ct. App. 1952)

Ohio Court of Appeals

This case has been appealed to this court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County granting to plaintiff an injunction permanently enjoining the defendants, *Page 452 Kappelman and The Moncrief Furnace Company of Cleveland, Inc., from carrying on business in the corporate name of the latter defendant.

Moncrief Furnace Models

The facts established by the pleadings and the evidence may be briefly noted. Plaintiff, The Henry Furnace Company, since 1943, has engaged in the Cleveland area in the manufacture of furnaces bearing the trade name and label of 'Moncrief Furnaces.' Some of the Moncrief furnaces are operated by gas, others by oil, and there are various models in different price ranges. Plaintiff has been the only manufacturer of Moncrief furnaces in this area since 1943, when it acquired by purchase the plant, patents and all other rights of The Henry Furnace Foundry Company, which latter company together with its various predecessors, Henry Scheible Company, The T. E. Henry Furnace Company and Henry Miller Foundry Company, had manufactured at least since 1905 a furnace similarly known in the trade as a Moncrief furnace. The Henry Furnace Foundry Company, and its immediate predecessor, The T. E. Henry Furnace Company, prior to the acquisition of its plant and assets by plaintiff, had sold its product, the Moncrief furnace, throughout the United States, with the exception of the states of Georgia, Florida, North Carolina and South Carolina. Under a consent decree entered into on September 30, 1914, The T. E. Henry Furnace Company and one S. P. Moncrief, in a law suit in a Georgia court, had provided that S. P. Moncrief and his associates should be entitled to the exclusive use of the trade name, 'Moncrief,' in the four states mentioned; that in the states of Alabama and Mississippi the said Moncrief and The T. E. Henry Furnace Company should be entitled to use the trade name, 'Moncrief,' in common; and that The T. E. Henry Furnace Company, its successors and assigns should be entitled to *Page 453 the exclusive use of the trade name, 'Moncrief,' on furnaces sold in all other states of the United States and in foreign countries. (Plaintiff's exhibit 26.) It should be added that there is testimony in the record that in Dallas, Texas, a company under the name of Moncrief Furnace Manufacturing Company at the present time is engaged in selling a furnace known as the M.F.C. DeLuxe but its field appears definitely limited to that state.

The petition of The Henry Furnace Company alleged that its business and that of its predecessors has been conducted in Cuyahoga county through several distributors and approximately 60 dealers. The testimony disclosed that since 1943 and up to August 1951 plaintiff spent $353,820 in advertising its Moncrief furnaces and accessories. Of this amount $73,879.99 was spent in Cuyahoga county. Total sales were more than $24,000,000 during the same period, of which $6,511,635 constituted sales in Cuyahoga county.

Plaintiff's petition asserted that at no time prior to March 18, 1951, had anyone except plaintiff, its authorized dealers and distributors manufactured or sold furnaces under the name, 'Moncrief,' in Cuyahoga county, Ohio, such name having theretofore been exclusively employed in this territory by plaintiff and its predecessors. The testimony bears out these claims. Plaintiff, in its petition, further alleged that by its action and that of its predecessors, distributors and dealers in advertising, selling and servicing furnaces under the name, 'Moncrief,' a valuable goodwill had become attached to plaintiff's product.

The petition alleged that on March 18, 1951, defendant Kappelman filed articles of incorporation of The Moncrief Furnace Company of Cleveland, Inc., defendant corporation, with the Secretary of State of Ohio and that the purpose of the organization by defendant *Page 454 Kappelman of the defendant corporation was to sell plaintiff's and other furnaces as Moncrief furnaces, with the deliberate intent and purpose of deceiving the public and of leading the public to believe that the defendant corporation was the manufacturer of plaintiff's furnaces. Plaintiff alleged further that, immediately after the filing of articles of incorporation of the defendant company, the defendants advertised Moncrief furnaces and offered them for sale. The petition asserted that the acts of the defendants constituted unfair competition and that the business and goodwill of plaintiffs, its distributors and dealers and products would be gravely damaged if such acts on the part of defendants were permitted to continue. Plaintiff asked that defendants be enjoined from doing business under the name of The Moncrief Furnace Company of Cleveland, Inc., and from advertising or otherwise representing themselves to be the manufacturers of Moncrief furnaces.

The answer of defendants admitted they were in the business of selling furnaces and that defendant corporation was incorporated under date of March 18, 1951, without notice or consent of plaintiff. The answer denied each and every allegation of plaintiff's petition not admitted therein.

At the trial, plaintiff introduced testimony of company officials establishing its exclusive use in Cuyahoga county of the trade name of Moncrief Furnaces as well as data as to its extensive sales and advertising. Plaintiff's 121 exhibits consisted primarily of examples of catalogue and trade advertising and also weekly newspaper advertising conducted by plaintiff in Cuyahoga county newspapers. A sample of such latter advertising is plaintiff's exhibit 33, a scrapbook consisting of actual advertisements which appeared in 17 newspapers published in Cuyahoga county during the period February 11, 1945, through July 13, 1945. *Page 455 This revealed advertising each week by The Henry Furnace Company of its Moncrief furnaces in four English language newspapers (Catholic Universe Bulletin, Cleveland News, Cleveland Plain Dealer and Cleveland Press) and advertisements appearing in foreign language newspapers listed, comprising one Italian, Rumanian, Bohemian, Lithuanian and Hungarian, and two Slovenian, Yiddish, Polish, and German publications. Other exhibits of plaintiff similarly showed newspaper advertising during other years between 1943 and 1951.

In addition to its detailed breakdown of testimony relating to advertising, plaintiff called the defendant Kappelman as if under cross-examination. The latter admitted that there is no individual connected with the defendant corporation bearing the name of Moncrief and that the corporate name of defendant was selected with knowledge of plaintiff's business.

At the close of plaintiff's case, defendants moved that plaintiff's petition be dismissed and for a judgment in their favor. This motion was overruled by the trial court and defendants thereupon rested their case without the introduction of testimony, merely renewing their motion to dismiss. The trial court thereafter granted judgment for plaintiff and permanently enjoined defendants from doing business in Cuyahoga county in the name of the defendant corporation. Defendants are the appellants in this court. We shall refer to the parties as they appeared in the trial court.

Two grounds of error are urged by defendants in this court: First, that the judgment of the trial court was erroneous since the evidence failed to reveal that the defendant corporation was in actual competition with plaintiff, and, second, that lack of exclusive use of the trademark, 'Moncrief,' should have caused a denial of equitable relief to plaintiff.

With respect to the first assignment of error, defendants *Page 456

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