146 F. 204 | U.S. Circuit Court for the District of Southern New York | 1906
This is a suit solely to restrain infringement of a trade-mark; no question as to copyright or as to unfair competition is presented. The trade-mark which complainant claims to own is the words “Buster Brown” as a title or heading for a comic section of a newspaper. No claim is made as to any particular style of illustration, only to these words used in this connection.
It is not disputed, it could not be seriously disputed under the authorities, that the title of a publication may become a trade-mark. Who was the first person to invent the name or to suggest its use in some' other connection is not material, the question is “who first used it as the title of a comic section of a newspaper?” That the complainant was the first so to use it is most clearly and positively shown'-by the affidavits. The suggestion that neither complainant nor defendant uses it as the title of a .comic section; that the real titles of the pages referred to are respectively “New York Herald Comic Section” and “Comic Section of the New York American and Journal”
It appears that certain other newspapers have used the words as a title for comic sections in their Sunday editions, but in every instance this was with the consent of complainant and upon paying it for .the privilege. What proceedings have been taken or are now pending touching registration of the trade-mark are not important; complainant has shown title to the trade-mark, irrespective of the statute. Injunction pendente lite may issue restraining the use of the trade-mark, either in the newspaper or in advertising matter, which may indicate or imply that defendant is about to publish a “Buster Brown” comic section. This relief extends only .to the words “Buster Brown”; Mr. Outcalt, or any one else whom the defendant may choose to employ, is entirely free to design, draw, color, and publish comic pictures .of the same kind as those to which plaintiff has prefixed that title, provided only that they do not so closely imitate pictures already published and copyrighted as to be an infringement thereof.