192 F. 915 | 2d Cir. | 1912
Lead Opinion
“It is customary to. print the marls upon the labels which are attached to the receptacles containing the goods.”
The use by the defendants of the words “Davids Manufacturing Company” at the bottom of their label is not, in our judgment, an infringement of the registered trade-mark. The complainant has, we think, confused its right of action which is for infringement of its trade-mark with an action for unfair competition. We have no jurisdiction of the latter action as the parties are all citizens -of the state of New York. If the complainant is satisfied that it can maintain an action for unfair competition, it should present it to the courts of New York which alone'have jurisdiction.
The decree is reversed with costs.
Dissenting Opinion
(dissenting). We have held that the complainant has a valid registered trade-mark in the name “Davids.” This requires us to hold, as it seems to me, that the prominent use of the same name in the same business by the defendants should be enjoined. If the decision of the majority be well founded, we meant, little in saying in our original opinion that if a mark “is entitled to registration it"is entitled to protection.” It must, now be accepted that while surnames may become valid registered trade-marks, they are infringed only by the use of the name standing by itself; there is no latitude in protecting them and they can be practically appropriated with impunity.