227 F.2d 728 (10th Cir. 1955), 5082, Olin Mathieson Chem. Corp. v. Western States Cutlery & Mfg. Co.

Docket Nº:5082.
Citation:227 F.2d 728, 107 U.S.P.Q. 257
Party Name:OLIN MATHIESON CHEMICAL CORPORATION, a corporation, Appellant, v. The WESTERN STATES CUTLERY AND MANUFACTURING COMPANY, a corporation; H. Reginald Platts, Harlow C. Platts, Debbie C. Platts, Lois M. Platts, and Marian K. Platts, doing business under the name and style of Western States Cutlery Company; and Western States Cutlery Company, a Colorado
Case Date:November 12, 1955
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 728

227 F.2d 728 (10th Cir. 1955)

107 U.S.P.Q. 257

OLIN MATHIESON CHEMICAL CORPORATION, a corporation, Appellant,

v.

The WESTERN STATES CUTLERY AND MANUFACTURING COMPANY, a corporation; H. Reginald Platts, Harlow C. Platts, Debbie C. Platts, Lois M. Platts, and Marian K. Platts, doing business under the name and style of Western States Cutlery Company; and Western States Cutlery Company, a Colorado corporation, Appellees.

No. 5082.

United States Court of Appeals, Tenth Circuit.

November 12, 1955

Rehearing Denied Dec. 16, 1955.

Page 729

Dudley I. Hutchinson, Boulder, Colo. (T. Henry Hutchinson and Dudley I. Hutchinson, Jr., Boulder, Colo., were with him on the brief), for appellees.

Before PHILLIPS, Chief Judge, HUXMAN, Circuit Judge, and SAVAGE, District Judge.

HUXMAN, Circuit Judge.

Appellant, Olin Mathieson Chemical Corporation, filed an action in the United States District Court for the District of Colorado against appellee, the Western States Cutlery and Manufacturing Company, a corporation, et al., seeking an injunction restraining appellees from using the trade-mark 'Western' and restraining them from selling or offering to sell knives bearing the trade-mark 'Western' and for an accounting of profits realized from the alleged unlawful use of that trade-mark name upon knives sold. After a hearing before the court findings of fact and conclusions of law were made and based thereon judgment was entered dismissing appellant's complaint with prejudice.

Appellant, formerly operating under the name of Western Cartridge Company (a Delaware Corporation organized January 25, 1922) and now operating under the name and style of Western Cartridge Company Division of Olin Industries, Inc., and appellant's predecessors have since January 1, 1896, been engaged in the manufacture and sale of ammunition, including shotshells, rifle and revolver cartridges, shotgun and air rifle shot, shotgun wads, bullets, shotgun and rifle powders, primers, blasting caps, targets and traps, at East Alton, Illinois, and at New Haven, Connecticut. Beginning January 1, 1896, appellant's predecessors adopted 'Western' as their trade-mark for such products and continuously since appellant and its predecessors have manufactured, sold and distributed large quantities of such products bearing the trade-mark 'Western' throughout the United States and in foreign countries, primarily to hunters and sportsmen. Such sales have been made through hardware stores, sporting goods stores and other similar retail outlets.

Appellant is the owner of nine registered trade-marks of the mark 'Western'. The first five were registered pursuant to the Trade-Mark Act of February 20, 1905, and the last four were registered under the Act of 1946. Four of these registrations registered the word 'Western' in script enclosed in a diamond format. The other five merely registered the word 'Western' in script, varying somewhat in the characters employed.

Appellee, the...

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