127 F.2d 6 (2nd Cir. 1942), 185, Pure Oil Co. v. Puritan Oil Co.

Docket Nº:185.
Citation:127 F.2d 6, 52 U.S.P.Q. 600
Party Name:PURE OIL CO. v. PURITAN OIL CO., Inc.
Case Date:March 14, 1942
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 6

127 F.2d 6 (2nd Cir. 1942)

52 U.S.P.Q. 600

PURE OIL CO.

v.

PURITAN OIL CO., Inc.

No. 185.

United States Court of Appeals, Second Circuit.

March 14, 1942

Page 7

Kelly Bell, of Chicago, Ill., (Gross, Hyde & Williams of Hartford, Conn., and Vinson, Elkins, Weems & Francis, of Houston, Tex., of counsel) for appellant.

George H. Cohen, Joseph W. Ress, and Naaman Cohen, all of Hartford, Conn., for appellee.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This appeal involves only the question of the substantive jurisdiction of the district court. The complaint on its face appears to have been framed under the Trade-Mark Act of 1905 alone; it alleged that the plaintiff was the owner of a number of registered trade-marks which contained the word, 'Pure, ' or its first three letters, 'Pur, ' and that the defendant, which operated a 'service station' in Hartford, Connecticut, had infringed these marks by selling oil and gasoline under the name, 'Pure, ' in interstate commerce. Upon the trial it appeared that the plaintiff did a large interstate business in the sale of gasoline and oil (originally including the supply of filling stations in Connecticut which it had, however, abandoned before action brought), and that it sold its products under a number of names, registered as trade-marks, all containing the letters, 'Pur, ' which had acquired a proprietary secondary meaning. The defendant operates a 'service station' in Hartford where it sells gasoline and oil under the name, 'Pure' and 'Puritan, ' by dispensing these substances to all automobiles which come along; 95% of these are 'recurrent' customers. It imported into Connecticut from Indiana some translucent 'globes' which it has placed upon the pumps by which it dispenses its gasoline and which contain the word 'Pure, ' and it displays the word, 'Puritan, ' at the station. The judge held that the plaintiff had not shown that the defendant had used the registered mark in interstate commerce, or that the value of the 'amount in controversy' was $3, 000; he also held that the 'cause of action' set up under the Trade-Mark Act was not 'substantial' enough to confer an incidental or pendent jurisdiction under the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 114, and Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 324, 325, 59 S.Ct. 191, 83 L.Ed. 195. For these reasons he dismissed the complaint for lack of jurisdiction.

We start with the fact that the only wrong forbidden by Sec. 96 of Title 15 U.S.C.A. is a 'use' of the mark in...

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