238 F. 154 | 2d Cir. | 1916
Lead Opinion
The name “Howard” without prefix or suffix, when used in connection with pianos, indicated that they were the product of the Baldwin Company, the complainant herein. There can be no doubt as to the wide publicity given by the complainant to the “Howard” piano and the large sales made by it under that name. In other words, it was the enterprise, energy, capital and brains of the complainant company that established and maintained the reputation of the Howard piano and that company is entitled to have its rights protected. The facts necessary to understand the situation are fully set out in the opinion of Judge Hough and need not be repeated here.
“The appellant’s brief attacks the plaintiff’s right to its trade-mark registrations, but the validity of the registrations is not tú issue in the case. At ■the final hearing below, plaintiff did not claim infringement of its registrations and confined its charge of infringement solely to its common law rights in the name ‘Howard,’ and Judge Hough at the close of his opinion said:
“ T incline to ground that decree solely on. principles of unfair competition, and leave the trade-mark situation to take care of itself; but upon this point I am willing to hear further argument if the matter is pressed, as it was not much alluded to in argument.’
“The matter was not pressed by either side and therefore there is no finding about it in the decree. It was evidently the opinion of the court below that all questions concerning the validity of the registrations should be left to the cancellation proceedings instituted by the B. S. Howard Company in the Patent Office and now about to come to final hearing there.”
We are inclined to think that the court was not called upon to hear what were practically moot questions not essential to a decision and which, even if decided according to the appellant’s contention, would not affect the controlling question in the least.
The decree of the District Court is affirmed.
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Concurrence Opinion
(concurring). I concur in the opinion of the court, but think we should go further. The complainant set up in its bill ownership of a trade-mark for the word “Howard” registered under the act of 1881 (Act March 3, 1881, c. 138, 21 Stat. 502) and of another such trade-mark registered under the act of 1905 (Act Feb. 20, 1905, c. 592, 33 Stat. 724), and prayed that it might be declared the exclusive owner of both. The defendant in its answer alleged that both these trade-marks were registered without authority of law and