Microsoft Word - Document4

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S
DYNASTY LIMOUSINE, INC., Plaintiff-Appellant,
UNPUBLISHED January
31,
2006
v No.
255284
Oakland Circuit Court
EMMETT GREENE, d/b/a DYNASTY SERVICES, d/b/a DYNASTY CORPORATE DELIVERY SERVICE, d/b/a DYNASTY ELEGANT LIMOUSINE SERVICE, d/b/a DYNASTY LIMOUSINE SERVICE, d/b/a DYNASTY EXECUTIVE SEDAN & LIMO SERVICE, d/b/a DYNASTY EXECUTIVE SEDAN SERVICE, and JAMES HODO, d/b/a DYNASTY EXECUTIVE SEDAN SERVICE,
LC No. 2003-046999-CZ
Defendants-Appellees.


Before: Cavanagh, P.J., and Hoekstra and Markey, JJ. PER CURIAM.

In this suit arising from defendants use of company names that are similar to plaintiffs
company name in that they all use the mark Dynasty, plaintiff appeals as of right the trial courts order granting defendants motion for summary disposition of plaintiffs common-law claim of unfair competition. We affirm.

Plaintiff first argues that the trial court erred in granting defendants motion under MCR
2.116(C)(8). A trial courts decision on a motion for summary disposition is reviewed de novo. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). Although defendants moved for summary disposition under both MCR 2.116(C)(8) and (C)(10), the trial court did not specify under which subrule it granted the motion. However, a motion under MCR 2.116(C)(8) tests the legal sufficiency of the claim based on the pleadings alone, Corley, supra, and it is apparent here that the trial court considered evidence outside the pleadings when deciding the motion. Thus, we find no merit to plaintiffs contention that the trial court decided defendants motion under MCR 2.116(C)(8). Rather, it is clear that the motion was decided by the court under MCR 2.116(C)(10).

Plaintiff also argues, however, that summary disposition was improper under MCR
2.116(C)(10). We disagree. A motion for summary disposition under this subrule tests the








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factual sufficiency of the complaint. Corley, supra at 278. When deciding the motion, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the nonmoving party to determine whether the proffered evidence establishes a genuine issue of material fact. Id.

To prove a common-law claim of unfair competition based on infringement of a partys
rights in a trade name, a plaintiff must prove that a business competitor has adopted a name that is confusingly similar to one already being used by another business and the similarity results in a likelihood or probability of confusion among consumers who are using ordinary care. Peninsular Stove Co v Augst, 288 Mich 465, 470; 285 NW 24 (1939); Boron Oil Co v Callanan, 50 Mich App 580, 584; 213 NW2d 836 (1973). Thus, common-law rights to a mark are acquired through prior actual use of the mark. I