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Reiff Funeral Homes, Inc. v. Reiff

Court of Appeals of Iowa

March 6, 2019

REIFF FUNERAL HOMES, INC., Plaintiff-Appellee,

          Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.

         Robert Reiff, doing business as Reiff Funeral Home and Crematory, appeals from an adverse judgment entered in favor of Reiff Funeral Homes, Inc.

          Erich D. Priebe and James H. Cook of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for appellant.

          Darin S. Harmon of Kintzinger Law Firm, P.L.C., Dubuque, for appellee.

          Heard by Vogel, C.J., Vaitheswaran, J., and Gamble, S.J. [*]

          GAMBLE, Senior Judge.

         Robert (Bobby) Reiff, doing business as Reiff Funeral Home and Crematory, appeals from an adverse judgment entered in favor of Reiff Funeral Homes, Inc. and its principal Joseph (Joe) Reiff in this common law trademark infringement suit.[1] Bobby asserts the district court erred in concluding "Reiff Funeral Home" has a secondary meaning entitled to trademark protections and the plaintiff's case should be dismissed on the basis of laches.

         We conclude Joe proved he had a valid trademark in the name of Reiff Funeral Home and Bobby infringed on that trademark. Joe's trademark infringement claim ripened when Bobby used the internet to enter Joe's market. Bobby failed to prove his equitable defense of laches.

         I. Background Facts and Proceedings.

         Reiff Funeral Homes began operating as a mortuary in 1959 under the care and administration of Robert W. (Robert) and Anna Mae Reiff. It has physical facilities in Epworth, Farley, Dyersville, and Cascade and has provided funeral services in Dubuque, Jackson, Jones, Delaware, and Clayton counties. Robert and Anna had ten children. Their sons Bobby and Joe both obtained degrees in mortuary science and assisted Robert in the family business.

         Sometime in the 1980s, Robert was diagnosed with cancer and made the decision with Anna to offer Reiff Funeral Homes to Joe and Bobby. Joe was still working in the family business when the diagnosis was made. Bobby had been living in the Fort Dodge area and working with Fort Dodge Area Funeral Service. In 1984, Bobby moved to Independence to manage the Mason Funeral Chapel for Charles Dietman. "Within six months," Dietman approached Bobby and asked if the Reiff name could be "put on the building." The business was then called Mason and Reiff Funeral Chapel. The Mason name was later dropped "because there was no value of the Mason name" and the business was then called Reiff Funeral Chapel. Bobby purchased the business from Dietman in March 1986.

         In early 1986, the families of Robert, Bobby, and Joe met with Robert's attorney John O'Connor at his law office in Dyersville and discussed options for the sale of the business. Robert wished each son to purchase two of the locations of Reiff Funeral Homes. Joe was interested in making the purchase along with his wife, Peggy. Bobby indicated he did not want anything to do with the "dead horses" and walked out of the meeting. After further discussions with Robert, Joe and Peggy decided to purchase the business and the buildings.

         Attorney O'Connor drew up the purchase agreements for the sale of Reiff Funeral Homes. Pursuant to the bills of sale dated September 30, 1986, Joe and Peggy purchased the buildings and real estate located in Cascade, Dyersville, Epworth, and Farley; the name of the business, "Reiff Funeral Home"; and the goodwill associated with the business. Joe and Peggy filed articles of incorporation with the secretary of state on March 8, 1995, identifying the corporation as "Reiff Funeral Homes, Inc.," with Joe as the registered agent and Joe and Peggy as the only directors.[2]

         Reiff Funeral Chapel was not performing well at the inception of Bobby's ownership. Bobby testified no calls were received from March to June 1986. Bobby testified he and his father had a discussion about the business. Bobby thought the word "chapel" sounded cold. He stated the two of them had a long discussion and Robert suggested that Bobby use the name Reiff Funeral Home to bring in families that related to the Reiff name. Bobby stated he was concerned with encroaching on his father's business but Robert purportedly indicated it would bring a broader spectrum of people to the funeral home and would benefit both Bobby and Joe. Bobby claims Robert offered to provide a signed document allowing him to use the "Reiff Funeral Home" name but Bobby declined, explaining his father's word was enough. In the fall of 1986, a sign was erected at Bobby's Independence location identifying the business as "Reiff Funeral Home" with an insignia of the letter "R" printed in script with a circle around it. Advertisements were placed in the local papers that would be serviced by the business, including where it had physical locations-Winthrop, Quasqueton, and Independence-all being in Buchanan County. Bobby recognized the value of the name Reiff Funeral Home. As noted above, before he changed the name he was not getting calls. Bobby testified, "[W]e were just about on our last-last grasp [sic], when business started coming in." But, Bobby did not pay any consideration to Robert for the use of the name. Bobby did not incorporate his business or register a trade name.

         Sometime in the 1990s after his father died, Joe became aware that Bobby was doing business as Reiff Funeral Home. This was a source of disagreement between the brothers, but they were still getting along and cooperating in their businesses. For example, in 2000, Bobby lost the building that housed the Independence facility to a fire. In rebuilding, he decided to add a retort[3] and change the name to reflect the services he could now provide. Joe helped Bobby during the rebuilding process by allowing him to use blueprints from his Dyersville location, which included a sign with the name Reiff Funeral Home. Joe told Bobby, "[O]f course, that will have to change." After construction was complete, Bobby announced an open house in the name of "Reiff Funeral Home and Crematory" in June 2002.

         Over the years, the brothers' relationship has deteriorated, partially as a result of the confusion related to their businesses. On April 11, 2008, Peggy sent Bobby an email informing him that he was not supposed to be using the name Reiff Funeral Home because she and Joe had purchased the rights to that name. Bobby denies receiving the email, claiming Peggy sent it to an old email address. However, it was not returned to Peggy undelivered.

         There were several incidents of confusion. Joe was served with papers for a collection action on Bobby's delinquent business account. People sent money for prepaid planning services to Bobby when it was intended to be placed in Joe's control. When confronted, Bobby initially denied that the money had been sent to him and then, when pressed, verified he had the money. On one occasion, he refused to send the money to Joe until the attorney-in-fact for the person demanded the money be turned over to Joe.

         The confusion escalated sometime around 2011 when Bobby put a website for his business on the internet. In addition to listing his locations in Buchanan County, Joe advertised that he was proudly serving several communities in northeast Iowa including the Dubuque County communities where Joe's Reiff Funeral Homes were located. As a result, on-line obituaries have been difficult to find for the families and friends due to the wording placed into search engines on Google. When they are searching for Joe's business they end up on Bobby's website because his URL was

         Other examples of confusion included phone calls to Joe's business when the caller was looking for Bobby's and vice-versa. One caller indicated that Bobby told him the two businesses worked together and Bobby could assist with a pre-need contract. Supplies that had been ordered by Joe's business were erroneously sent to Bobby's business. When the supplier was asked about the discrepancy, it was verified that the items were sent to the wrong address. Joe's business ended up having to pay twice for the same products as Bobby did not call to have the items returned to the supplier nor did he call Joe to say the items were received in error. The logo for Joe's business is the scene of a park. When advertisements have been ordered by Joe's business, the printer indicated it could take the logo off the web site for publication-the printer used Bobby's insignia instead of Joe's park scene.

         For several years, Joe has asked that Bobby desist in using the name that Joe purchased from his father. Bobby has continued to use the name. Joe testified, "I was trying to keep family peace, and trying to make this work, but as the years went on, it kept getting confusing, and the more he put on his website, indicating he serviced the area, everything just kept snowballing, and I couldn't reason with him."

         Reiff Funeral Homes, Inc. filed suit on December 1, 2016, alleging Bobby had infringed upon its trademark "by marking their products and services under a similar designation that will cause a likelihood of confusion among customers." Joe sought an injunction against Bobby's use of the name Reiff Funeral Home. Bobby denied Joe's trademark infringement claim and asserted the affirmative defense of laches.

         On December 27, 2016, Bobby incorporated and registered "Reiff Funeral Home & Crematory, Inc." with ...

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