209 F. 37 | 2d Cir. | 1913
On December 21, 1886, Pearson obtained United States Letters Patent, No. 345,583, for a single bristle rubber cushion “hair or other brush.” He had already taken out an English patent for the same device, so that his American patent expired, probably, in 1899. Heat once began the manufacture and sale of hairbrushes made in conformity to the patent, in England, under the name “Very.” In 1888 one Reid and some other of Hughes’ predecessors undertook the selling of like brushes in this country. Reid had talked with Pearson about the matter and an arrangement was entered into whereby Pearson was to sell his brushes, in the United States,'solely to Reid and his associates. It was decided that the brushes sold here should be called “Ideal” and it is a controverted question of fact, who selected that name. Complainant’s evidence tends to show that was one of his predecessors. The widow of the original Pearson testified that her husband suggested it to Reid. We do not find her recollection of a conversation listened to many years before she testified especially persuasive; it appears that, whoever suggested the word, it was adopted by Reid and his associates and the first die for stamping on the handle was made here and sent to Pearson. Subsequently another die—containing the word “England,” in compliance with Custom House requirements—was made in England. Hughes’ predecessors apparently were not the mere consignees or agents of Pearson; they bought the brushes outright and resold them here as a business of their own and they had exclusive license for sale of the same in this country. Without rehearsing the evidence we concur with Judge Ray that the word “Ideal” was used and understood in this country as indicating brushes sold by Plughes and his predecessors, not as brushes made exclusively by Pearson. Application for a registered trade-mark, therefore, accompanied by declaration that it had been used ten years in his business, was properly made by Hughes.
. [3] A technical objection is raised to the validity of the registration on .the ground that it does not appear that the applicant made oath to the actual use of the mark as a trade-mark. Neither does it appear that he did not make such oath. The certificate of. the office is sufficient prima facie to indicate compliance with all its regulations; the burden of showing noncompliance is on the person asserting it.
On all other points covered by his opinion we concur generally with Judge Ray.
The decree is affirmed, with costs of this appeal.