W.A. Gaines & Co. v. Rock Spring Distilling Co.
| Citation | 179 F. 544 |
| Parties | W. A. GAINES & CO. v. ROCK SPRING DISTILLING CO. et al. |
| Decision Date | 02 May 1910 |
| Court | U.S. District Court — Western District of Kentucky |
James L. Hopkins, for complainant.
Luther Ely Smith and Sweeney, Ellis & Sweeney, for defendants.
In its bill the complainant avers that it is the owner of a trade-mark consisting of the words 'Old Crow,' which for a long time it has used in connection with whisky; that as such owner in the year 1909 it applied for and obtained from the Commissioner of Patents a registration of said trade-mark pursuant to the act of Congress in that behalf and that the defendants at and before the filing of the bill were using the said trade-mark in connection with whisky thus infringing complainant's rights greatly to its injury. An injunction and an accounting were prayed. The defendants filed a joint plea wherein they averred that the matters and claims set up in the bill had previously been finally adjudicated in and by another court of competent jurisdiction. The complainant set the plea down for argument and meantime the Hellman Distilling Company filed its petition asserting that it was the real owner of the trade-mark 'Old Crow,' that it had been adjudged to be so in a suit brought by the complainant, and that the defendants were using it solely as its agents and under contract with it, and thereupon it prayed that it might be admitted as a party to the action, so that it might defend its title to the trade-mark. Both the plea and the petition were argued at the same time.
Petition for Leave to Intervene.
The petition for leave to intervene is based, as we have stated upon the ground that the petitioner owns the trade-mark in contest, and that it is being used by the defendants as its agents and under its authority. With the petition is tendered a plea to be filed should the petition be granted. It was avowed at the argument, and no doubt correctly, that the petitioner was bound by contract to defend this suit on behalf of the defendants thereto, and that in fact it is defending it. This greatly modifies if it does not remove any particular necessity for the intervention asked. As an original proposition I certainly should strongly feel the stress of the request for leave to intervene, but I am not prepared, as yet, to clearly see a way to avoid the force of Judge Lurton's ruling in Toler v. East Tennessee Railway Co. (C.C.) 67 F. 170, although it may not have been intended to apply to such a case as this. Besides, it is elementary that an estoppel by judgment works as well in favor of or against those who are in privity as for or against those who were actual parties to the litigation in which the judgment was rendered. It is asserted that the defendants Rock Spring Distilling Company and Silas Rosenfeld are in privity with the petitioner, and we may assume without at present so deciding that that is true, but if so, then they have as much right to plead the estoppel of the judgment settling the proprietorship of the Old Crow brand in bar of complainant's claim thereto as the petitioner in person would have.
For these reasons the petition of the Hellman Distilling Company will be denied, and in consequence its motion to file a plea herein will also be denied.
Sufficiency of Defendants' Plea.
Choosing not to reply to the joint plea of the defendants, the complainant has set it down for argument under equity rule 33. It thus admitted that the averments of the plea are true. Rhode Island v. Massachusetts, 14 Pet. 257, 10 L.Ed 423; United States v. California, etc., Co., 148 U.S. 39, 13 Sup.Ct. 458, 37 L.Ed. 354. This being so, the question is, Is the plea good? It states, in detail, the facts relied upon in bar of complainant's action. Disregarding the details, we think the facts stated in the plea are as follows, to wit: (1) That heretofore, viz., in 1904, the complainant instituted its action in equity in the Circuit Court of the United States for the Eastern District of Missouri against Abraham M. Hellman & Moritz Hellman, partners doing business as A. M. Hellman & Co., in which the complainant alleged itself to be the owner of the trade-mark 'Old Crow' for whisky, and that it was being used and that complainant's rights therein were being infringed by the firm of A. M. Hellman & Co.; (2) that relief appropriate to such a state of fact was prayed; (3) that in said action the complainant also charged the said A. M. Hellman & Co. with unfair competition in respect to the use of the brand 'Old Crow' on whisky, and also prayed for relief appropriate to that charge; (4) that said defendants appeared in the action and contested the same on the merits; (5) that in the said action such proceedings were had as resulted finally, under the mandate of the United States Circuit Court of...
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Stratton & Terstegge Co. v. Stiglitz Furnace Co.
......United States, 52 App. D. C. 368, 287 F. 942; Gaines & Co. v. Rock Springs Distilling. Company (C. C.) 179 F. ......
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Stratton & Terstegge Co. v. Stiglitz Fur. Co.
...use. U.S. Code, title 15, sec. 96 (15 USCA sec. 96); Robertson v. United States, 52 App. D.C. 368, 287 F. 942; Gaines & Co. v. Rock Springs Distilling Company (C.C.) 179 F. 544; Columbia Mill Company v. Alcorn, 150 U.S. 460, 14 S. Ct. 151, 37 L. Ed. 1144. We are here concerned with a common......
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W.A. Gaines & Co. v. Rock Spring Distilling Co.
...privity between the Hellmans-- the defendants in that case-- and these defendants. A plea of former adjudication was held good. (C.C.) 179 F. 544. After replication filed, proofs were including, by stipulation, all proofs in the Hellman Case; and, on final hearing, the bill was dismissed. 2......