*1 рrotection party tile ceeding conflicting claims. Jurisdiction complaint. allegations
laid complaint
The case is com- in this that the controversy
plainant party to a ais any single action
cannot be settled by any it and cannot settled ac- payment.
tion of own double without controversy is the sensible
The settled
process parties bringing into one proceeding.
court case, supra,
The Treinics is dis
tinguishable the instant in that interpleader’s citizenship differs from
that of the claimants who are co-citizens. case, supra, Security
The Trust and the case, supra, containing
Mailers both situation as inslant
same fact case hold jurisdictional requirements
that the are met 41(1). The Inter-
under U.S.C.A. §
pleader Act, 41(26), did 28 U.S.C.A. abrogate right bring interpleader
suits under the federal courts U.S. is, ; 41(1) interpleader C.A. stat remedy
ute intended to afford a in sit interpleader previously
uations where conclusion unavailable. The drawn being remedial, sup
was that statute
plements supplants rather than the earlier Thus, interpleader .nay
statute. sub
brought in a where the inter- federal court
pleader’s from the domicile differs claim
ants who are domiciled another state. 41(1).
28 U.S.C.A. § petition for rehearing is denied. APPAREL
CALIFORNIA et al. CREATORS CALIFORNIA, OF WIEDER al.
et
No. Docket 20513. Appeals, Second
Circuit Court Circuit. July *2 dissenting. HAND, Judge,
L. Circuit Angeles, Feingold, of Los Gal. Max (Ezra Grossman, City, of New York Sсhoichet, Cal., Angeles, L. of Los Nathan plaintiffs-appellants. brief), for Heimowitz, City of New Katz & York Katz, City, of New York of coun- (Simon ’ defendant-appellee Wieder of sel), California, Inc. Lauterstein, City of New York
Leon Spiller & Brown and Lin- (Lauterstein, Lauterstein, all of New York W. coln brief), defendant-appellee City, on the Company, Cortley Inc. Shirt Ilowser, Atty. granted Fred Califor- N. Gen. of denied motion and nia, Linney, Atty. toto, Asst. defendants’ Hartwell Chief H. motions—Wieder’s in *3 Gen., Atty. part. those of Augustine, Deputy and W. R. defendants in excepted District support in order and Gen. amicus curiae from its preserved for plaintiffs-appellants. claim of one claims fixture trial the of the plaintiffs, Sportswear California Syvertson Lyle Haight, Trippct & and against Sportswear because defendant Cal., Newcomer, Angeles, of Los C. all similarity names, of iheir trade and Commerce, Angeles for Los Chamber of against Cortley defendant because of simi- curiae, support amicus in of the claims of D.C.5.D.N.Y., larities in their labels. plaintiffs-appellants. F.Supp. plain- judgment 499. From this HAND, CLARK, SWAN, Before L. and appealed. tiffs have Judges. Circuit complaint Ill their and later affidavits Court, appellants to submitted the District CLARK, Judge. Circuit wearing maintained that California-made apparel superior was generally quality in appeal this In must decide whether design to that made in all and other sections group or not and deal- of manufacturers country. They argued further that v/earixig apparel ers in located State apparel California spent had prevent manufacturers may manufacturers California large money advertising sums of apparel their dealers wearing in in and located getting wares and succeeded in this using New York from “Califor- the names accepted by idea the buying public. Tht- nia” or in “Californian” connection with and answering auswer affidavits of the plaintiffs, their businesses. are 76 There challenged defendants these comprising incorporated claims an trade associa- contrary. perhaрs asserted the As in- tion and 75 of was its members. The defend- case, evitable from the nature of the corporations are three ants of New York general statements both sides City California, Inc., tended in Cali- —Wieder affiants, opinions to be conclusions of the Sportswear, fornia Cortley Shirt facts, rather than vigor- basic Company, Cortiey however Inc. Defendant does ously respective vie.ws were any use advanced variant of the word “Cal- or asserted. however, claim, Defendants name, ifornia” in its trade but it does use weight given whatever term asser- “Californian” as a brand name tions on behalf plaintiffs, sportswear for show line of its and on the right premises; in relief sportswear. labels and the Purport- affixed to such view, District Court except this ing act themselves, for but for those cases of asserted direct for California manufacturers of specific plaintiff by clcarly use wearing apparel, joined together similar names which it reserved for trial. competition bring this action unfair it defendants. demanded presents obvious an inter damages, accounting profits, an esting important issue. The manu enjoining the an order defendants from of California iacture.rs have so considered using it, word “California” or vari- by large shown numbers who have of it ation in trade names or in de- grouped together their to еnforce these claims scribing products. their Defendants in great businesses so a dis their answers seemingly counterclaimed for declara- tance atxd not of nationwide Wieder Defendants tory judgments. scope. 'Fhis is shown also by support sought given declarations Sportswear plaintiffs’ plea by briefs amici names, their trade Attorney to continue to use curb» rights General of Califor decía,ration Cortley sought Angeles defendant nia the Los Chamber Com label use right hand, its brand name. merce. On the other rather a preliminary injunc- far-reaching scope plaintiffs’ moved for Plaintiffs claims emphasized by all defendants moved for tion, and defendants, who sug suni~ dismissing complaint judgment gest the numerous mary instances well-known counterclaims. products, on their such as shirts, The District Manhattan Palm many spending spent do serts that has suits, garters, which it and is Beach and Paris advertising cre- thousands indicated. of dollars not come from the localities California wear- change prac ate consumer demand for The extent of in business styled might ing apparel manufactured and judgment tice plaintiffs; interest by an shows no direct suggested examina but forecast royal- directory itself, wide showing the such as ASCAP had any city tion of city composers appeared in Gibbs names ties ly usage of prevalent state and Buck, 725, 83 L.Ed. York 59 S.Ct. the New houses. Thus business plaintiffs 28 seemingly appear 1111. There also telephone has City directory *4 individuals, 11 cor- copartnerships, 36 40 more and cases, including countless such parties porations, a the con total 75 named involving far as of California.1 So wrongs. dependent These concerned, who assert individual sumer he brought plaintiffs only represent upon claim not them- private remedial actions types selves of various of by competitors; remedies .under as for the manufacturers women’s, men’s, ap- Act, wearing and at least children’s Trade Commission Federal parel, places 45, are 1938, 15 with their factories and of U.S.C.A. as amended extensive, Californiа, employed by are the business within the of now and State but prevent misleading represent of the man- Commission to California also other public origin similarly article sold affected as to of ufacturers who would be 2 Plere, therefore, ques- concerned we are a retail. and as whom there is common rights rights affecting of individual only with remedial of law their tion fact and rights and whether or not such busi businesses manner of the same as by the unfair damaged been plaintiffs. Defendants assert nesses named competition 4,500 of defendants. upwards there are of such manufac- California; and this is not turers in First we should note the character denied, appears аccepted but as capacity plaintiffs of the and the effect of words, other fact they their declaration that sue on behalf per plaintiffs than 2 represent less named of manufacturers simi- California potential cent number. is no There larly Apparel affected. Plaintiff California showing of the relative value of their in- non-profit organization, Creators ais or- vestments; large number of unincor- ganized three some in- months before the porated among plaintiffs, businesses suit, stitution' of this as includes American busi- light considered members wearing ap- 17 associations practice generally, suggests certainly ness parel respective manufacturers greater proportionate investment than composed aggregate members the numbers. do firms manufacturing “hundreds of wearing plaintiffs as these metropolitan So far assume apparel within the area of the County only by can do Angeles, represent they so of Los others California.” It as- 2 may widely See, e.g., Houbigant, 1 Here, too, Federal Inc. tbe v. be noted Comm., 1019, Cir., 2 F.2d cer 139 York” “Boston” Trade scattered “New ‘ 116, 763, stores; appears 65 S.Ct. tiorari denied 323 U.S. to be even Rigaud, Chicago” 611; Sixth Etablissements 89 L.Ed. Store “Boston Comm., Cir., Inc., City. 2
Avenue,
v. Federal Trade
New
New York
Thus in
Cigar
590;
repairing
Moro
Co. v.
125 F.2d
El
with a
Haven
find shoe
we
Comm.,
Cir.,
junk,
F.2d
4
107
label, furs,
Federal Trade
furniturе
Hartford
429;
tailoring
v. Federal
fish,
N. Heusner & Son
H.
labelled “New
smoked
596;
Comm.,
Cir.,
Waterbury.
3
106 F.2d
York,”
Trade
an inn
v. Federal
Trade
Seemingly
Co.
Fioret
Sales
claimed
taboo
Comm.,
Cir.,
2
F.2d 358.
100
See
a statement
would extend to
tiffs
Algoma
himself,
Lumber
Comm. v.
origin
Federal Trade
man
as
the business
67,
315,
Co.,
L.Ed.
products;
54 S.Ct.
U.S.
distinguished
here
from his
Klesner,
532;
v.
California,
Federal Trade Comm.
Wieder
defendant
19,
138,
1,
74 L.Ed.
280 U.S.
organized
his
Wieder
Samuel
principals;
A.L.R.
wife,
had been in
garment
until
in California
business
York in 1944.
to New
came
23(a), Federal
(3)
Turning,
oí
therefore,
subd.
Rule
virtue of
the merits
fol
Procedure, 28 U.S.C.A.
the claim
competition,
find
of Civil
for unfair
Rules
com
723c, which has
it of
lowing
geographical
section
course
settled that
authority for name,
granting
place
monly referred
manufac
indicative
None
suit.
ture,
“spurious” class
appropriated
the so-called
cannot
trade
(1)
(2)
of subds.
requirements
Alcorn,
mark.
Mill
v.
Columbia
Co.
representa
1144;
fulfilled;
464,
basis
and the
U.S.
are
37 L.Ed.
themselves
plaintiffs
only,
Clark,
indeed
tion
Canal Co. v.
80 U.S.
13 Wall.
questions
common
assert,
581;
existence
20 L.Ed.
LaTouraine Coffee Co.
rights.
affecting
several
Co.,
Cir.,
of law or fact
v.
Lorraine Coffee
permissive
device of
merely
But
certiorari
Lorraine Coffee Co.
denied
unnecessary
plaintiffs,
found
joinder
Coffee
LaTouraine
only helpful in
procedures
But,
contend,
under state
S.Ct. 189.5
disposition of
of the broad
geographical
acquire
the facilitation
name
second
juris
of federal
the confines
ary
within
significance
suits
*5
support
will
which
an ac
grant authority to
It
not
diction.
does
competition.
tion for
Our
unfair
nonappear
adjudicate
rights
as
finally
question;
that
we
concerns
have
see
any
ing
to confer
additional
parties or
plaintiffs
rights
whether
not
have such
suing.
rights upon
plaintiffs
tlic
substantive
in
name of
that defendants’
state
Co., Cir.,
Young
2
Oppenheimer v. F.
&
deceptive
J.
use thereof is
to their potential
387;
144
2 Moore’s Federal Practice
F.2d
causes them
loss.
818;
2235-2245, 2291;
55
46 Col.L.Rev.
Yale
development
In the
this
branch
831; cases cited in Clark on Code
L.J.
3
acquired
of the law
nаme mark
1947, 405,
Pleading, 2d
407.
Ed.
Plence
significance
secondary or actionable
4,500
rights
potential
of the rest
source of
identification of the
manufacture
here,
plaintiffs
actually
are
not to be settled
goods,
of the
and hence
showing the
give judgment
though
and we cannot
origin
goods.
Hence
find
we
point
they were. We stress
because
this
rule so often staled that to establish such
appear
suggestions
at times
to be
there
that
secondary meaning,
a
while it
representative
neces
a
is
character
suit
4
recovery.
sary
in
public
aid
Of course where
that
there
to show
has
is
become
suit,
personal
in
Buck, supra,
identity
true class
as Gibbs v.
сonscious of the
(hat
manufacturer,
consequences
otherwise;
yet
are
but in
it must be
shown
situation
safety
in
whatever
potentially
carry
secondary
is
is asserted
greater
meaning
signify
numbers of property
origin
has come to
claimants.
Indeed, it but serves to
single, though anonymous,
accentuate the fun a
source. Cres
damental weakness of
claim here
Co.,
Tool
cent
Co. v. Kilborn & Bishop
2
rights
that the
claimed are
299;
so diffused
Cir.,
Coty, Inc.,
247 F.
Le
v.
Blume
attenuated that
not show
do
Import Co.,
convinc
D.C.S.D.N.Y.,
264,
292 F.
af
ing
particular
reality
any
persons.
as to
Cir.,
344;
2
firmed
293 F.
Shredded Wheat
3
So,
too,
aggregate
injunction
sought,
cannot
is
the difficulties
purposes
proof may
their claims for the
joinder
of federal
be reduced
ibid.;
Sturgeon
jurisdiction,
competitors
parties
v. Great
the actor’s
Corporation,
Cir.,
plaintiff.”
Lakes Steel
6
143 F.2d
819,
5
779,
certiorari denied 323 U.S.
65
While “most of the issues in the ease
190,
622;
questions
89
S.Ct.
L.Ed.
law,”
Central Mexico
involve
of common
Light
Munch, Cir,,
&
say,
Power Co. v.
2
110
feel we should
with Justice Brandéis
point
85,
F.2d
situation,
would
Kellogg
become
similar
Co. v.
importance
trial,
Co.,
here in the
event
111, 113,
National Biscuit
305 U.S.
in view of
1,
111,
109,
defendants’ denial of
n.
59 S.Ct.
facility proof only, 267, viz: “When 282-284.
898 669, Cir., 832, Co., 2 certiorari 284 U.S. Humphrey denied Co. Cornell v. pro 566, 43, 52 where 960; S.Ct. Koke Co. L.Ed. v. Coca Co. Cola 113, pecul particular region, using 146, ducers of a America, 143, 41 S.Ct. 254 U.S. pro 189; patent special process, 150 A.L.R. iar or other
65 L.Ed. collected cases 1938, Restatement, 1092, ; Torts, quality whose product single § 1093 3 duced a a, 730, b, 727, 715, Pills comment superiority recognized. comment generally “Indeed,” Learned Judge Eagle, comment a. v. bury-Washburn Co. Flour-Mills Drug 162, United Bayer 608, Co. v. put Hand certiorari Cir., 41 L.R.A. 86 F. 505, 509, 884, Co., D.C.S.D.N.Y., 272 F. “the 43 L.Ed. 703, 173 U.S. denied ‘secondary meaning’ is built v. 1184; law of Co. Rapids whole Furniture Grand presupposition.” Co., Cir., The same idea upon that Rapids Furniture Grand expressed recently 212, denied 245, certiorari F.2d F.2d 1066; 771, 529, Co. v. National Biscuit Kellogg 88 L.Ed. 64 S.Ct. 321 U.S. 113, Co., 153 Misc. Co., 305 U.S. Newark Douglas v. Cheese Kaese 406; Brandéis said: 85, 83 L.Ed. when Schweizerishe 274 N.Y.S. Justice primary significance Starck, 162 Misc. must “It show Bern Saul union consuming 816; v. Mod-Urn Douglas in the minds of the the term 293 N.Y.S. producer.” Co., but the public product Misc. Packing Cheese Elgin Nat. Watch same effect are To the but natural N.Y.S. 368. upon Illinois Watch-Case Co. v. tiffs should seize cases as such *6 6 270, 365, 665, 674, 21 45 S.Ct. L.Ed. and contend Rapids Grand Furniture v. Armstrong carry Paint & Varnish Works Nu- as all far logic that its should as 336, Corporation, 315, large 59 305 state. apparel Enamel U.S. of a manufacturers the 191, L.Ed. 195. 83 rationale fur before discuss the But cases that none of the should note ther we development far-flung With of more the remedy breadth of approach at all the enterprises and of business the wider' uses is first by Here there claimed advertising, recognized now be it must that weight of numbers involved the sheer may of de trade deceit newer forms addition, is the com In claimants. veloped language the literal of the where having involving goods of may bination “single adequately factors source” rule with apparent or obvious connection precedents. no partic reflect seеms This all dif locality and manufacturers of case with reference ularly the to certain apparel for both men and forms of ferent geographical through names where some jewelry, through under and' from women combination of circumstances such a name 7 hats, coupled with the public garments, to mean in the mind not outer come they source, number, that have definite conceded no single though but a even facts Moreover, limited, quality grading. independent of of standards manufacturers producers. materials appears Thus have held that semifinished it actions misrepresentation into the finished by ap goods go maintainable for pаrts propriation geographical products come from other names where York; products country, including New this soil of certain localities true, respect were, with some of because of climatic or other to be natural seems least, advantages, superior at even to the products similar manufacturers localities, defendants themselves —as assert California Fruit articles Canners’ hardly 82; deny in plaintiffs can the ab C.C.D.Md., Myer, Ass’n v. 104 F. any adequate Co., Cir., policing of their Harvey American Coal 7 50 sence v. probably goes 6 limitation relief denial or S. C. far This case Johnson, Cir., interpret though secondary v. 2 116 it, & Son Johnson Novelty Toy 427; assumed, signifiсance Durable & Cor F.2d rather than was Co., Cir., poration plaintiff 2 discussed, & v. J. Chein 133 and the first-named certiorari denied 320 U.S. F.2d was in event entitled to relief 1849; appropriation L.Ed. Arrow of its entire trade name Browing Co., Cir., v. Globe Distilleries defendant. products Differences justify defendants were held to tiffs and
.899 plaintiffs guished Further, high authority various businesses. of the bench lay enjoyment of the long sitting, Day, can claim then writing with J., concede, public’s opinion good their As Judges will. with the concurrence advertising only a matter of Taft extensive Lurton. Here court refused development, enjoin with their trade asso- its representing recent defendant from organized only just bring- before zinc washboards at ciation as “Aluminum” the suit plaintiff, the sole wash- ing this action. manufacturer of surfaces, with rubbing boards aluminum on the basis cited is true that plaintiff holding that not established cases ‘some text have asserted writers prior defendant’s, use name general expansion law, though others merely could sue for deceit of the monopoly pointed dangers of out the public, and because did failed it not show expansion property inherent con direct loss of customers or direct cepts beyond in names the deceit of the itself. public public interests advanced competition. has free Discussion cen These cases of course arе authorities meaning plaintiffs’ claims; tered about and continued but we need vitality early leading of two go cases. In not so far decide to what extent New Coplay York & R. represent Cement Co. still the law.9 For we have C.C.E.D.Pa., precedents Cement 44 F. L. apt more direct and more Co. 833, rehearing memorandum, R.A. with C. circuit from the Court. C., plaintiff Ely-Norris was one sever Safe Co. v. Mosler Safe al Cir., cement manufacturers located at Rosen F.2d Judge Hand, in dis- L. Y., dale, products N. who marketed cussing Coplay case, pointed Cement under the name of “Rosendale appear out Cement.” it did not plain- The defendant manufactured persons cement wеre making else tiffs cement where sold Rosendale cement. Rosendale. He continued: “There *7 Bradley, Mr. sitting circuit, reason, ap therefore, on no to assume Justice plied single-source strictly the rule defendant, de customer toas deceived plaintiff’s feat ce- claim defendant’s of unfair com origin place petition. cement, was approv buy only This cited with such case ment, desiring to and pressed al and even bought further in would have American It re- Saginaw Mfg. Washboard Co. v. Co., that the 6 sulted did not show Cir., 609, 281, 103 F. necessary through 50 loss trade L.R.A. distin- the de- 8 type: Callmann, below; of the former Handler, See 1 referred and see also L.Rev, Competitiоn Competition, 175; The Law of Unfair Unfair 21 Iowa 243; Callmann, Trade-Marks, 1945, Grismore, Are lie Unfair Methods of Com Reaps petition Who Unjust where He Has Not Actionable Sown: at the Suit of a Com petitor, Enrichment in Un 33 Mich.L.Rev. Law 321. 9 595; Competition, fair 55 In addition Harv.L.Rev. to the criticisms cited in Derenberg, 8, supra, Trade-Mark Protection note reference be made 1936, 81-85, Reporter’s Trading, 94-96; Explanatory Unfair Note to Competition Nims, Restatement, Torts, Proposed The Law of Unfair Final 1929, 1939, Trade-Marks, 289; 2, 178-181, City 3d Draft No. Ed. and cf. compare Zlmkoff, Monopoly Tibbetts, but G.C.D.Mass., of Carlsbad versus v. 51 Significant writers) Competition: 852, Trends 856. But in the text ac Anti-Trust, cept Trademark, Patent, these is cases not overruled and Competition law, Suits, Unfair with 53 Yale such L.J. modification is 529; suggested by 514, Corporation Ely- Eastern Wine Mosler v. Safe Co. v. Winslow-Warren, Ltd., Co., 132, Cir., Safe 2 137 Norris 314, 273 F.2d U.S. 47 S.Ct. 957, 955, 578, 758, 71 certiorari denied 320 U.S. discussed L.Ed. below. Derenberg, 65, 452; L.Ed. 64 88 Trade-Mark C. S.Ct. S. John Protection Johnson, Trading, 94; Cir., 1936, Callmann, son & Son v. 2 110 Unfair F.2d 1 427, 429; by Competition acute Law of discussion The Unfair Chafee, Competition, Trade-Marks, 1945, 243, 245; Unfair Callmann, 53 Harv.L. Competition? 1289, 1305, 1312, Is Rev. What Unfair 1317-1321. The 28 Geo. by Handler, 585; discussion L.J. and see False Mis Hall v. Duart Co.,
leading D.C.N.D.Ill., Advertising, F.Supp. 22, 39 Sales Yale L.J. is 838. representa- explosion if the an chamber had customers.” upon its own
fendant’s fraud
“If on
He continued:
tion
true.
follows:
was
issue
Further
stated
he
false as
representation was
speak-
hand
gеnerally
other
may,
competitor
“While a
been, there
have
alleged
an-
it
sometimes
is
customers
away
ing, take
all the
they
had
nothing
is
to show that
can,
which
are means
other that he
gone to
would
is
the facts
known
of these
deceit.
he
use. One
must not
in
competitors
than to
rather
plaintiff
maker
name as
The
use of another’s
false
market,'
a foundation
deceit,
lay
toor
goods is
of his own
or source
claim,
U.S.
of sales.”
loss
geographical or
false use
which the
578.
314, 71 L.Ed.
example.
only
But
descriptive
one
terms is
questions
end the
we conceive that
in the
implica
decision
This
always two: Has the
which arise are
to
construed
opinions,
two
from the
tion
And has
plaintiff
customers?
in fact lost
pre
accepted
widely
gether, have
the law for-
means which
by
he lost them
significant
They constitute
vailing law.
plaintiff’s name
bids? The
use of the
false
individualizing
upon
the need
emphasis
which each element
an instance in
point to
asserted, and thus
Cir.,
clearly shown.”
here'.
element
weak
plaintiff
alleged
had
Finding that
protec
damages or to receive
recover
To
monopoly from
the inference
which
these de
actions
tive relief
followed,
of customers
lie- reversed
loss
show
therefore
fendants, plaintiffs must
dismissal below.
representation
defendants
only a
sense
deceitful
false and
in
While this
was
turn reversed
decision
wrong
Court,
to their doors
luring customers
Mosler Safe Co.
plaintiffs have lost
fully,
also that
Ely-Norris
but
Safe
v.
thereby. This
rightful custom
done on the
71 L.Ed.
own
hence we
also,
summary judgment, and
ground
case,
grant
that in this
exclusive
accept
which the
as facts those
plaintiff.
must
right
was shown
good
faith
intend
plaintiff
patent
explosion
tiffs show
however,
must,
They
disclose
protection
prove.
a safe as
chamber
rely
what
do intend to
robbery.
points
But
Holmes
their affidavits
Justice
Co., Cir.,
out,
every
upon. Engl Aetna Life Ins.
consistent
allegation
it was
with
*8
case
affidavits
the
in the bill that there were other
safes with
proof
certain difficulties as tо
explosion
suggest
chambers besides that
which even
represen
patent.
character of the
plaintiff
deceitful
the
had
Hence there of
a
the
well
appeared nothing
prevent
Thus there
to
tations
the defendant
here
made.12
tendency
representation
doubt
to the
making
from
that its safes
substantial
to
be
in
customer
pointing
that
ceived
monopoly
board case
guished,
question
He made the
any
by
out
customer of
the
of
was not
the metal
that
there
latter,
it was “a fair
plaintiff.
the American Wash-
point
cited in
the
was
thus to be
the
for the articles
plaintiff
yet
defendant,
presumptive
clearer
inference”
.
distin-
de-
by
with intent
ticle
T.
U.
cality against any person
public,” which is now the role of the
S.C.A.
remedy
C.,
The Trade-Mark Act
“a false
a dead
note
of
proof;
§
in favor of
to deceive affixed to
123. This is said to have
letter
designation
supra.
any rate,
because' of the diffi-
persons
who
of
of
origin.”
wilfully
of
any
the
gave
ar-
lo-
or
*9
allegations
case on
erly
are therefore
denied in the
more
discretion of the court.
pertinent here, where the limited
They
reasonably
had had
extent
full opportunity
of the
produce affidavits,
share of
total
to
business
and it was clear that
definitely appears
merely
and
sought
is not
a mat- the further ones
merely
were
cumu
inference,
ter of
as
Indeed,
there.
lative.
the affidavits do not reach
appeal,
apply
of
this
disclosed,
not
does
to
as here
there is of course the
pending
that,
cases,
46(a),
necessity
proving
apparel
set forth in note
of
designate
to 15
origin
U.S.O.A.
10.71. The amendment
labels do
goods
expected
produce
buyers,
to
a more effective
to the
and there is the
remedy, Robert,
problem
The New
further
Trade-Mark
as to the rather curious
Manual,
ISO-188; Callmann,
ambiguous wording
The
tho statute
July 5, creating
liability
New Trade-Mark
(query;
Art of
to an action
931, although
46 Col.L.Rev.
judgment,
so,
Mr.
Does this mean
and if
for
Derenberg
perhaps
judi-
quite
what?)
states
it
more
in favor of a
indefinite
ciously
codifying
the doctrine of the
number of volunteer
How far
Rapids
Prepar-
change
Grand
Derenberg,
may
case.
Ely-
the effect of the
ing
Law,
for
the New Trade-Mark
An-
Norris
Safe
Oo.
must
therefore
'
Inst,
alysis 50,
America,
Research
await
further
elucidation.
applied
11, supra.
6. As
to a situation such
See note
any
one
them
in dollars
disclosed
had lost
really
crucial issues as
cents,
along
I
I
with
go
think
Ely-Norris
should
case.
However,
decision
it
making.
we are
appealed
judgment
In so far
make
necessary
would not
to
them
be
all the
adjudicates claims of
finally
proof
injunction;
that
get
order
an
to
Sportswear
рlaintiffs except the California
personally
satisfied,
I
one
any
if
should
appealable judgment.
Co., it
final and
is-a
proved
of them
that the defendants’ adver-
that
preserves the claims
as it
far
so
diverted,
divert,
tisements
would
Sportswear,
it
Cortley
plaintiff against
his
If
I
en-
so,
customers.
he did
should
But,
appealable.
not
is not final and hence
get
join
continuing to
defendants from
have'seen,
claims of each
as we
enjoin
way, just
I should
customers that
the defendants
each of
getting customers
them from
liti
separate
could
were
claims
be.
fraud.
permis
gated together only
because
This, I
Moreover,
go further.
I should
the new rules.
provisions
joinder
sive
“spurious”
action
agree,
under
class
20(a), 23(a)' (3), P.R.C.P.
See Rules
Cali-
23(a)
agree
I
that the
(3);
Rule
therefore,
trial,
retention
some
no
Apparel
Inc.
stand-
fornia
Creators
has
judg
way
appealability
affects the
complain. However,
ing
seven-
to
there are
54(b),
Rule
disposing
ment
of others.
ty-five
who have
individual merchants
R.C.P.;
Beardall,
Reeves v.
plaintiffs;
joined
it well
unascertainable last false or label. It is the advertisement rem- which invoke the of action in
kind Indeed, when edy summary judgment. see, constantly seeing
I more and as I am
more, disposition to make increasing use remedy, help wondering
of that I cannot danger
whether there is not advance, impede,
rather the adminis- than way easy justice. for
tration It is dispose
a court with crowded dockets
them, readily habit of recourse to it thorough, though
becomes denial of that
dilatory, facts, examination justice depends up- even more than law;
on a studious examination of the for always of law can mistake be reviewed. Speed Roger hurry antipodes Rice, ought Birmingham, Ala., judicial appellants. behavior. I-Iill, D. Atty., U. S. and Robert John Giles, C. Jr., Asst. U. Atty., S. both of Bir-
mingham, Ala., appellee. SIBLEY, Before McCORD, LEE, Judges. Circuit PER CURIAM. v. UNITED Appellants were
PUTMAN et al.
STATES.
under
convicted
an in-
charging
dictment
conspiracy
them with
11820.
No.
violate
pertain-
the internal
laws
revenue
Court,
Appeals,
Circuit
Fifth Circuit.
ing to the manufacture, possession, and sale
July
spirits.
of distilled
The indictment
August
was filed
15, 1945. The indictment set out overt
beginning
acts
appeal
1941. On
appellants contend for the first time that
year
limitations,
three
statute of
prosecution.
U.S.C.A.
barred the
There is no merit
in this contention.
object
Where the
of a conspiracy is to
evade
internal
revenue
pertaining
laws
manufacture, possession,
to the
and sale
spirits,
distilled
period
the limitation
applicable
years,
is six
years.
not three
Int.Rev.Code, 3748;
U.S.C.A.
Braver
States,
man v. United
49, 54,