Maola Ice Cream Co. V. Milk

The plaintiff bases its action upon unfair competition. These facts are clearly stated in the complaint and amended complaint. 1. In 1935 F. E. Mayo & Co., Inc., owned an ice cream plant in Washington and another ice cream plant in New Bern: from both plants the company manufactured, distributed and sold ice cream under the trade-name or trademark "Maola." 2. During the time the company owned both plants there existed between the two plants a well defined division of territory. The territory served by the Washington plant consisting generally of that part of Eastern North Carolina north of Vanceboro, and that served by the New Bern plant the town of Vanceboro and southwardly. 3. In 1935 the company sold to H. L. Barnes and wife, the defendant's predecessors in title, the New Bern plant, and it was clearly understood, and the agreement of sale so provided, that the use of the trade-name "Maola" was limited to the territory theretofore served by the New Bern plant. 4. From then until March 1953, with one or two rare exceptions along the border of the respective territories, the territorial division theretofore existing was observed by the defendant and its predecessor and the plaintiff and its predecessors. 5. In March 1953, the defendant purchased a dairy in Williamston, North Carolina, in territory theretofore continually and exclusively served by the plaintiff and its predecessors, and from said dairy began the distribution  and sale of ice cream products in cartons carrying an identical trademark "Maola," as those used by plaintiff. 6. That this has created untold confusion and uncertainty on the part of the buying public as to the identity of the manufacturer, is unfair competition, and unless the defendant is restrained