197 F.2d 293 (9th Cir. 1952), 12953, Nancy Ann Storybook Dolls v. Dollcraft, Co.

Docket Nº:12953.
Citation:197 F.2d 293, 94 U.S.P.Q. 290
Party Name:NANCY ANN STORYBOOK DOLLS, INC. v. DOLLCRAFT CO. et al.
Case Date:May 31, 1952
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 293

197 F.2d 293 (9th Cir. 1952)

94 U.S.P.Q. 290

NANCY ANN STORYBOOK DOLLS, INC.

v.

DOLLCRAFT CO. et al.

No. 12953.

United States Court of Appeals, Ninth Circuit.

May 31, 1952

Rehearing Denied July 14, 1952.

Page 294

Mellin, Hanscom & Hursh, Oscar A. Mellin, LeRoy Hanscom, Jack E. Hursh, San Francisco, Cal., for appellees.

Before STEPHENS, HEALY and GOODRICH, [*] Circuit Judges.

GOODRICH, Circuit Judge.

This litigation involves the validity of registered trade-marks and a claim for damages for alleged unfair competition. The form of proceeding was an action for a declaratory judgment and the defendant put in a counterclaim. The position of the parties will be kept more clearly in mind if they are called by name rather than as plaintiff or counterclaimant. The dispute is between Nancy Ann Storybook Dolls, Inc. (Nancy Ann) and Dollcraft Company (Dollcraft). There are two individuals, officers of Dollcraft, in the litigation but, as will be shown, we are not concerned with their part in the lawsuit.

Nancy Ann markets dolls. It has secured trade-mark registration under such names as 'Red Riding Hood, ' 'Little Miss Muffett, ' 'Little Bo-Peep, ' 'Mistress Mary, '

Page 295

'Little Miss Donnett, ' 'Curly Locks, ' 'Goldilocks, ' and so forth. Dollcraft also sells dolls and it, too, has a 'Red Riding Hood' and several other named dolls in the list covered by Nancy Ann's registered trade-marks.

Nancy Ann says that Dollcraft's use of the names it has protected by registering them as trade-marks is actionable. Dollcraft, on the other hand, attacks the validity of the claim that the names listed are to be classed as trade-marks and says it has been guilty of no unfair competition.

In the district court two of the names registered by Nancy Ann were upheld 1 but the remainder were rejected. 2 Nancy Ann brings the case here for review.

The appellant makes much of the fact that these trade-marks were registered by the patent office. Such registration does not, of course, bind this court. Jacuzzi Bros. v. Berkeley Pump Company, 9 Cir., 191 F.2d 632. It is our responsibility to decide whether the registered trade-mark is entitled to legal protection.

'The office of a trade-mark is to point out distinctively the origin or ownership of the article to which it is affixed; or, in other words, to give notice who was the producer.'...

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