In this action plaintiff accused the defendant of trade-mark infringement and unfair competition in the defendant’s use of the word “Admiral” on its products. Plaintiff, upon institution of suit, sought a preliminary injunction, which Judge Btirke granted to the extent of requiring defendant to disclaim any connection between its goods and plaintiff and to take other steps to guard against deception of customers. Admiral Corp. v. Penco, Inc., D.C.W.D. N.Y.,
Judge Burke’s opinion cited above sets forth the facts clearly and succinctly, and ■we shall assume familiarity with it. Plaintiff owns and operates numerous manufacturing plants throughout the United States and maintains distributors in this country and throughout the world. It now manufactures or distributes television sets, radios, radio-phonograph combinations, refrigerators, electric ranges, and some miscellaneous appliances and parts. Defendant has an office and store in 'Rochеster, and operates stores in Elmira, Binghamton, Syracuse, and Buffalo — all .in New York state. It does not manufacture the products it sells, which are electric vacuum cleaners, electric sewing machines, electric floor polishers, and parts for these appliances. It sells only at retail, principally to housewives and in homes. Defendant buys its vacuum cleaners in 'Chicago and they are shipped either to its affiliate, Price *519 Vacuum Stores, Inc., 1 in Philadelphia, or direct to defendant’s stores in New York state. Defendant’s sewing machines are imported from Japan, where the trademark “Admiral” is affixed. They, too, are delivered to Price Vacuum in Philadelphia and shipped from there to defendant’s stores in New York state.
“Admiral” was first adopted by Columbia Radio Corporаtion as its mark for radios in October, 1929. In 1936, Columbia assigned the trade-mark, with its good will, to Continental Radio and Television Corporation, which had been incorporated in 1934 and which in 1943 changed its name to Admiral Corporation. “Admiral” has been used as its house mark since 1939 and has since been in continuous use as the dominant trade-mark for all its products. Current annual sales exceed $200,000,000. Since the adoption and use of the trademark “Admiral,” plaintiff has sold in excess of $1,000,000,000 worth of its products valued at retail under the trade-mark “Admiral” аnd has spent approximately $47,-000. 000.in thus advertising its goods. Its products are sold throughout the world. Its trade-mark “Admiral” has been registered in the United States and thirty foreign countries. It is the world’s largest manufacturer of television sets. It has a large research staff and a sales organization of 81 distributors and over 31,000 dealers. Its products have attained general and wide acceptance and a reputation for quality.
Defendant did not use the trade-mark “Admiral” for its electric sewing machines and vacuum cleaners until early 1950 or long after the plaintiff began its world-wide use. Before that, defendant had used the trade-mark “Avalon” to identify its vacuum cleaners. It then adopted the mark “Admiral” because, as Price, its president, testified : “We thought ‘Admiral’ was a much nicer name as far as we were сoncerned. It meant tops in something. It meant the best of things, the tops of something. We thought it would be more receptive.” Defendant did not advertise these products, but consistently advertised rebuilt Singer sewing machines and Electrolux vacuum cleaners at a very low price for the purpose, as the court found, “of securing leads to sell its Admiral machines.”
In addition to contesting the jurisdiction of the court, defendant relies upon its right to share in the use of plaintiff’s symbol, asserting (1) that the parties were not in сompetition, since the goods were not the same, but were “radically different”; (2) that the defendant adopted the mark only after a careful search disclosed that it was available, since it was being used generally for various products; and (3) that the mаrk “Admiral” is a technically weak, “self-praise mark,” which was registered some 35 times in the United States Patent Office to persons other than the plaintiff for a wide variety of goods, and hence not considered exclusive by the Patent Office, *520 which had accеpted and published the applications of defendant’s parent company for the registration of the mark “Admiral” on sewing machines and vacuum cleaners. It also asserted that the evidence did not establish any deliberate misrepresentation by it of-the origin of its sewing machines and vacuum cleaners. -
.[1] We must first consider defendant’s objection to ’the court’s jurisdiction, although this contention is utterly lacking in merit. There was in any event diversity of.citizenship of the parties; and the court found the amount involved to exсeed $3,00.0 —a finding which is clearly supported by the evidence as to the plaintiff’s business investment safeguarded in .this action.. The ground actually taken by the court was that of trade-mark infringement under 28 U.S.C. § 1338,- where no jurisdictional amount is required. Applicable also is the express grant- of the Lanham Trade-Mark Act, 15 U..S.C. § 1121. The requirement, 15 U. S.C. §§ 1114, 1127, that the. infringing use shall be in commerce which is subject to congressional regulation is manifestly satisfied, since defendant transported its marked goods in interstate commerce from manufactory to sales outlet. Ironite Co. v. Guarantee Waterproofing Co., 8 Cir.,
On the merits the decision 'below seems clearly correct. The contrоlling principle is now succinctly stated in státütory form as imitating use “likely to 'cause confusion or’mistake or to deceive purchasers as to the source of origin of such goods or services.” 15 U.S.C. § 1114(1).
3
While this statute of course now governs, S. C. Johnson & Son v. Johnson, 2 Cir.,
Nor are defendant’s answers persuasive. As clearly appears from the cases cited above, the fact that the products are not identical does not excuse if they are sufficiently similar to make confusion likely. Both plaintiff and defendant were marketing usual electrical household products;
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it cannot be said that electric ranges and refrigerators are so compartmentalized from electric sewing machines and vacuum cleaners that housewives would not (as they did) think that the name “Admiral” applied to all signified a single source of origin. See also L. E. Waterman Co. v. Gordon, 2 Cir.,
After the trial the defendant filed a motion below asking for t'he withholding of judgment pending decision by the Commissioner of Patents on certain petitions recently filed by the defendant for cancel-ling most of the certificates of registration relied on by the plaintiff or in the alternative for delay to take testimony respecting the invalidity of these certificates. The court denied this motion and defendant claims еrror. But there was no reason for the requested delay after completion of the full trial. Defendant’s challenge to the validity of plaintiff’s trade-mark registration could, and certainly should, have been prepared before trial. Further, there is no reаson to expect success from this belated move; and if by chance it were successful, the relief granted below is justified by the findings of unfair competition, which were fully supported by the evidence as we have seen. We find no merit in defendant’s further contentiоn that the court was required to withhold its equitable relief on the purely conjectural possibility that defendant might so tardily show plaintiff to be tainted by unclean hands. The permanent injunction and the counsel fees awarded plaintiff were fully justified.
Turning to plaintiff’s cross-appeal, plaintiff urges that a right to an accounting has become mandatory under the Lanham Act, 15 U.S.C. § 1117, thus superseding the earlier view, 3 Restatement, Torts § 747, that where the respective products were not directly competing, the plaintiff may not recover profits. We have held otherwise, however, and that now seems the settled construction of the statute. Triangle Publications v. Rohrlich, supra, 2 Cir., 167 F.2d at pages 973, 974; Chester H. Roth Co. v. Esquire, Inc., 2 Cir.,
Affirmed.
Notes
. Jack Price, defendant’s president and sole stockholder, is president and majority stockholder of Price Vacuum. Defendant’s activities are controlled from these Philadelphia offices where its records are kept. Most of defendant’s product is shipped to it from Philadelphia.
. This appears most pointedly in Finding of Fact 24: “Several of defendant’s customers, in and about Rochester, New York, have purchased either electric vacuum cleanеrs or electric sewing machines bearing the trademark Admiral from defendant, believing that such appliances were manufactured by or originated with plaintiff. The belief of such customers that defendant’s products were manufactured by or originated with plaintiff wаs based either on the affirmative acts of defendant’s salesman who either stated or clearly implied that defendant’s products originated with the plaintiff, Admiral Corporation, or it was based on the consumer’s conclusion that an electrical aрpliance such as a vacuum cleaner or sewing machine bearing the trade mark Admiral would, naturally originate with the Admiral Corporation.”
. The relevant portion of that section provides: “Any person' who shall, in commerce, (a) use, without the consеnt of the registrant, any reproduction, counterfeit, copy, or colorable imitátion of any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers as to the source’ of origin of such goods or services.”