This is an appeal from an injunction order emanating from the District Court of Midland County, Texas. The temporary injunction enjoined appellant from continuing the use of an advertising plan in its grocery stores, which plan was known as the "Cash Circle Card", with accompanying store banners and bag stuffers. This controversy arose in the following manner:
In May, 1959, a Mr. Goulding, sales representative for appellees, called on appellant at its home or general office, in Lubbock, Texas. Goulding made this appointment and call in an effort to persuade appellant to purchase the product of his employer, which was called the "Cash Surprise Bonus Card." Bag stuffers and banners were to be furnished along with the purchase. These bonus cards had been prepared and developed by appellees. They were oblong cards with various money amounts printed around the periphery of the card. These amounts were from ten cents up to five dollars, and were to be punched out by the checker at the grocery store in accordance with the amount of the
Shortly after this purchase, in September 1959, Food Mart began using the cards in the Midland-Odessa area. Appellant then asked an advertising agency in Lubbock to produce a promotion that would meet the competition of the use of appellees' cards by Food Mart in Midland and Odessa. A Mr. Webster, of the advertising agency, after some time produced the design involved here, and which was named "Cash Circle Cards". The Cash Circle Card involved the same method as appellees' card. It seems to differ only in that it is round, or circular; and, instead of punching out amounts of money, they are "branded". The arrangement of the card is somewhat different, but it must be admitted that it is substantially the same, and has the sewed-in square for the surprise bonus, as does appellees' card.
Appellees brought suit for a considerable sum of money, and asked that appellant be restrained from using its Cash Circle Cards.
As stated in the briefs, this is a "trade secret" case, and does not involve copy-right or patent problems. Appellees state in their brief that it does not involve a claim of unfair competition, as such is generally considered.
We believe that the issues that are here decisive are: Do the Cash Surprise Bonus Cards of appellees constitute a trade secret; and, if so, was such obtained unfairly by appellant by means of a breach of confidence?
There is some discussion of unfair competition, but we do not believe that principle applicable here, because the necessary elements, which we will not detail, are not in evidence.
We will take up, first, the question of whether or not the bonus cards of appellees were so constructed and developed as to constitute a "trade secret". After studying the record and the authorities, we have reached the conclusion that they were not. The idea of punch cards, or bonus cards, was not only old, but had been used in many forms and manners and cards similar to these were currently in use at the time of the sale, in many other cities and states, and had been advertised in the newspapers very extensively. The card speaks for itself. The newspaper advertisements, the bag stuffers and banners merely advertise and urge people to take advantage of these cards, which were given out free. The cards themselves were self-explanatory on the face thereof. Appellant testified that it had used a somewhat similar device in 1950, whereby a customer, by virtue of his purchases, could buy cooking ware at a reduced price. Cards similar to these here involved were, and had been, in active use
The court, in the above case, further says:
Again, these cards are completely explained by the language on the face thereof. It constitutes a complete disclosure of the method or scheme. The store in the cities named above had informed the public, by newspaper advertising, banners and bag stuffers, of the entire method of this cash bonus card. In other words, the entire device, or method, had been exhibited to the general public for many months before appellant made its purchase. It seems to us to be a merchandising device, not especially new in design or method, and containing no particular secret. While the cards here involved are certainly similar, we believe it is only that similarity which would necessarily occur when anyone used the punch card bonus idea, which is by no means a new or secret idea. To hold otherwise, we think, would be to encourage and condone a monopoly and create the effects of a copyright where no copyright exists. It seems to us that these cards are not a secret, but more of a promotion of doing business or advertising. Certainly appellant could have, and apparently did have, all the information about these cards before it bought them, or before it asked its advertising agency to produce something in competition at Midland and Odessa. As stated in 79 C.J.S. 935: "While it has been said that an exact definition of a trade secret is not possible, the courts nevertheless define a trade secret to be a plan or process, tool, mechanism, or compound, known only to its owner and those of his employees to whom it is necessary to confide it in order to apply it to the uses for which it is intended." This article later states: "Like any other secret, a trade secret is nothing more than a private matter; something known only to one or a few and kept from the general public, and not susceptible to general knowledge. There must exist a substantial element of secrecy, and the term `trade secret' is not applied to matters of public knowledge, or of common knowledge to a trade, or of general knowledge in an industry, or to matters which are completely disclosed by the goods which are marketed." (Emphasis ours). Here, of course, the cards were complete on their face, and were certainly offered and in use by the general public. We therefore hold that appellees' cards here involved, as constituted and sold, along with the bag stuffers and banners, do not come under the heading or meet the requirements of that which is a trade secret.
With regard to the second point, we do not believe that appellant acquired any information about these cards in the course of any confidential relationship between it and appellees, or appellees' representative. This was merely a case of a salesman attempting to make a sale, in May of 1959. He does not say that he asked them to keep this matter secret, but
There is a long line of cases holding that the courts will protect, where one obtains a thing by violation of a trust, or where one, by some other wrongful act, becomes an involuntary trustee. O'Bear-Nester Glass Co. v. Antiexplo Co., 101 Tex. 431, 108 S.W. 967, 16 L.R.A.,N.S., 520; Harrison v. Riddell, 64 Mont. 466, 210 P. 460, at page 464; Franke et al. v. Wiltschek, 2 Cir., 209 F.2d 493; 170 A.L.R. 488. Here, however, as we have stated above, we cannot find that appellant obtained any trade secret from appellees by the breach of any confidential relationship. As we have heretofore said, the cards and other advertising were self-explanatory and had been widely distributed to and presented to the public. There is no evidence that the appellees' representative, Goulding, asked appellant to treat any of these matters confidentially. As a matter of fact, we do not know what could have been confidential, other than the price paid by appellant, as the entire operation of this promotion had been and was to be carefully explained to the public.
Therefore, because we do not believe there is a trade secret here involved, and because we do not believe that any information that appellant's advertising agency might have used was improperly obtained or obtained through breach of confidence, we must hold that there was not sufficient reason or justification to warrant the trial court in granting the injunction. On the basis of what we have just stated, we do not believe the argument of maintaining status quo has any substantial merit.
Appellant has raised other points, to-wit, that the injunction violates the Texas antitrust laws; that the cards and the use thereof is against the public policy of the State, and that appellees did not show that they did not have adequate and available remedies of law. We do not find merit in any of these points, and will overrule them without discussion.