Lawsuit in pipeline: Plumber brothers dispute firms' names

Huh?

A dispute between brothers over the two companies' names appears to be headed to court.

Kevin Cummings, owner of Cummings Plumbing Inc., said in a news release he is preparing to sue his brother, Larry Cummings Jr., owner of Arico Plumbing Inc. and three other local companies, including one for which he registered the trade name Cummings Heating and Cooling in February.

An attorney for Kevin Cummings says Larry Cummings Jr. is attempting to deceive customers to divert business from his brother's business by using the Cummings name.

But Larry Cummings Jr. counters that he's simply branching out with a new company he named Cummings Heating and Cooling. The company his estranged brother runs is incorporated simply as Cummings Plumbing Inc. — without the words "Heating and Cooling," and lacks a registered trade name, he adds.

Complicating matters is the fact that both brothers own stock in Cummings Plumbing Inc., the company their father, Larry Cummings Sr., ran for more than two decades until he died last September.

Until last year, Kevin Cummings was most commonly associated with another plumbing company, Baker Brothers Plumbing, while Larry Cummings Jr. is most commonly known for his company, Arico Plumbing.

"I have licenses and trade names on all my companies and they have no trade name registration on anything," Larry Cummings Jr. said. "They have a corporation calling Cummings Plumbing, which is all that that company does."

Kevin Cummings did not return phone calls seeking comment, but his attorney said that within a week he plans to file a lawsuit seeking an injunction against Cummings Heating and Cooling.

"Common-law trademark"

"What this is is an intentional effort to steal business from a well-known, well-established, almost iconic company in the Tucson community, and that's just wrong," said Michael S. Green, an attorney with Munger Chadwick, P.L.C.

Green said trademark law is a "weird beast," noting that both federal and state law apply on the issue.

"The bottom line is Larry Cummings (Jr.) has taken up a trade name that has been around for umpteen years and is trying to use that to pull away business from Cummings Plumbing," Green said. "All he did was register a trade name, which is not valid if it conflicts with a trademark, and we have what's known as a common-law trademark."

A trade name is the name of a business or company, while a trademark is any word, symbol, slogan or combination identified with a company's goods, said Janis Gallego, an attorney with Hecker and Muehlebach PLLC.

While a company can register a trade name with the Arizona secretary of state and gain some protection for that trade name, a federal trademark usually trumps a conflicting trade name, even when that trademark wasn't formally registered, Gallego said.

"There is a rule called the common-law trademark and a mark can be a word or a combination of words such as Cummings Plumbing, Heating and Cooling, even if the company is incorporated under a different name," she said. "And the federal registry doesn't allow two marks in the same industry."

A company that wants to call itself "Apple Bank" can do so without infringing on "Apple Computer," but within an industry, a company name is established on a first-come, first-served basis, Gallego said.

Green, Kevin Cummings' attorney, said that means Larry Cummings Jr. can't use the name Cummings — even though it's part of his name — for a company that does plumbing, heating or cooling in the Tucson area, because customers have come to associate the name Cummings with the company now owned by his brother.

Same address

The address of Cummings Heating and Cooling now listed in print ads is the same address as Arico Plumbing, Green noted.

"It's the same address as Arico, so why doesn't he call it Arico unless he wants to confuse people into thinking they're calling Cummings," he said.

Larry Cummings Jr. said Arico Heating and Cooling and Cummings Heating and Cooling are not the same company.

"Arico Heating and Cooling has always been known as me, but Cummings Heating and Cooling has different management and focuses on construction-type installs and stuff, so it's a different company," he said.

Kevin Cummings was not aware that his brother had registered for a trade name in February, and his first knowledge of the alleged infringement came when he opened a phone book last week, Green said.

"They're side by side in the new phone books, and if you see Cummings on one ad and see Cummings on the ad on the next page, you're going to assume they're the same company," he said.

Cummings Plumbing has been using the slogan "Cummings Plumbing, Heating and Cooling" for at least six years, and has therefore established a common-law trademark, Green said.

Larry Cummings Jr. argued that Cummings Plumbing does very little heating and cooling, and on the odd occasion when they do, a truck that simply says "Cummings Plumbing" arrives on the job site.

● Kevin Cummings owns Cummings Plumbing Inc. and Baker Brothers Plumbing LLC.

● Larry Cummings Jr. owns Arico Plumbing Inc., Arico Heating and Cooling Inc., Mr. Pipe, and Cummings Heating and Cooling.