This is a suit to restrain the defendants from using the trade name “Pump Room” and symbols related to that name in connection with the operation of their restaurant business in the City of Philadelphia. The case was heard and argued in the district court. Thereafter the trial judge had doubts whether the jurisdictional amount was involved, the suit being primarily one to оbtain an injunction and the case in federal court by diversity only. So the judge raised the point with counsel for each side. The jurisdiction issue was submitted to the court. The district judgе concluded that he did not have jurisdiction, but went ahead and made findings of fact and conclusions of law in case the appellate court thought him mistaken on thе jurisdiction point, D.C.E.D.Pa.1957,
The case has been presented to us by each side with unusual competent thoroughness and the court has been greatly assisted thereby.
That the judge raised the point of jurisdiction was commendable. It is cur business in federal courts to make sure that we are entitled to hear and decide the cases brought to us. See McNutt v. General Motors Corp., 1936,
The point which makes the most trouble and about which there was so much discussiоn in the argument on appeal involves the test to be used in determining the amount in controversy. The defendant says that the proper measure in a case of this sort is the injury, past and prospective, inflicted upon plaintiff’s trade name and asserts that the plaintiff has not shown that the damages incurred
This Court has gone thoroughly into the question of the necessary elements for an equity suit bаsed on diversity in the case of John B. Kelly, Inc. v. Lehigh Nav. Coal Co., 3 Cir., 1945,
“It is well settled that in an action of this nature, the jurisdictional amount is tо be calculated on the basis of the property right which is being injured. If that property right has a value in excess of $3,000 the Federal Court has jurisdiction of such a diversity suit evеn though the plaintiff had not suffered $3,000 damages at the time suit was instituted.”
In the course of the opinion Judge McLaughlin discusses and distinguishes the Supreme Court cases which were urged uрon us by the defendant in argument here. He also cites an abundance of authority in support of the conclusion reached as to the applicable tеst. To these we may add a line of trade name decisions which, in addition, define the right in terms of good will. Seaboard Finance Co. v. Martin, 5 Cir., 1957,
We turn, therefore, to the merits of the plaintiff’s case. As indicated earlier this litigation is in federal court by virtue of diversity only. It involves no federal trademark questions but is solely a question of the tort law concerning unfair competition. As the Supreme Court of Pennsylvania has pointed out, in eases of this sort, the federal decisions are particularly valuable. Goebel Brewing Co. v. Esslingers, Inc., 1953,
The plaintiff complаins of the defendant’s use of the term “Pump Room.” Plaintiff’s “Pump Room” is a dining room in its hotel in Chicago and has been operated as such since 1938. The name is taken from the Pump Room in Bath, England, with the consent and approval of the proprietors of that establishment. Plaintiff’s room is bazarre, garish and expensive; 1 the cuisine speciаlizes in dishes served on flaming swords and other exotic items. It is a room where quite evidently patrons go to see and be ceen. It has been advertised nationally and рublicized through other media.
The defendant is a restaurant proprietor in Philadelphia and has been since 1942. The name “Orsatti’s Pump Room” and the insignia of a pump was adopted about 1951. In some cases the word “Orsatti’s” has not been used before the term “Pump Room.”
The heart of the plaintiff’s claim is that through the years and at great еxpense it has built up about the name “Pump Room” a distinctive reputation. It may not be the kind of reputation which would meet the approval of Cromwell’s Puritans or thеir modern successors if any. But, nevertheless, because of it, the name has developed a business value which the plaintiff is entitled to have protected. Seе 3 Restatement, Torts 597-98 (1938).
Judge Learned Hand has described the controlling principle in words which are characteristically apt in a paragraph which has been quoted over and over again by courts in this type of case. 2 We can do no better than to quote it ourselves. He said : 3 *
' “His mark is his authentic seal; by it he vouches for the goods which bear it; it carries his name for good or ill. If anоther uses it, he borrows the owner’s reputation, whose quality no longer lies within his own control. This is an injury, even though the borrower does not tarnish it, or divert any sales by its use; for a reрutation, like a face, is the symbol of its possessor and creator, and another can use it only as a mask. And so it has come to be recognized that, unless the borrower’s use is so foreign to the owner’s as to insure against any identification of the two, it is unlawful.”
The learned district judge was willing to allow the plaintiff some measure of prоtection. He insisted that the name “Orsatti” be put ahead of the term “Pump Room.” It is there now on the outside marquee of Orsatti’s in Philadelphia but the photographs in evidеnce show pretty clearly that “Pump Room” is very prominent and the “Or-satti’s” is not. The judge also thought that if the plaintiff wanted to establish a restaurant within ninety miles of Philadelphiа and call it “Pump Room” that the defendant should then be restrained from using the term. Both these contentions too narrowly restrict the plaintiff’s protection. It is entitled to have its name protected in full, not modified by other people’s qualifying names and, at least on the facts before us, not limited by distance. The distance point is expressly covered by the cases cited below. See also Callmann, op. cit. supra § 76.3(b) (1), particularly at 1204. 4
Interestingly enough, this problem of protection of namеs of eating places has come up in quite a number of cases involving restaurants whose proprietors have claimed to have built up far-reaching reрutations for themselves. In every instance but one
5
to which our attention has been called the plaintiff has received full protection for the value of his namе. Stork Restaurant, Inc. v. Sahati, 9 Cir. 1948,
The judgment of the district court will be reversed and the case remanded fоr further proceedings not inconsistent with this opinion.
Notes
. Perhaps “expensive” is a word which varies with the individual, but there is a finding of fact that the average food check is $"5.75 per person; the average beverage cheek is $2.10.
. See Ambassador East, Inc. v. Shelton Corners, Inc., D.C.S.D.N.Y.1954,
. Yale Elec. Corp. v. Robertson, 2 Cir., 1928,
. For a general discussion of the territorial scope of trademark and trade name protection, see Annotation, 1944,
. El Chico, Inc. v. El Chico Cafe, 5 Cir., 1954,