247 F.2d 809 (8th Cir. 1957), 15635, Iowa Farmers Union v. Farmers' Educational and Co-op. Union

Docket Nº:15635.
Citation:247 F.2d 809, 114 U.S.P.Q. 382
Party Name:IOWA FARMERS UNION (Formerly Farmers Educational and Co-operative Union of America, Iowa Division), and Iowa Union Farmers Association, and Fred W. Stover, Charles Shearn, George Wharam, Betty Lownes, Lee Harthan, Elmer Gustafson, LeRoy Martin, George Rose, Gustav Mohr, Lester Muhlenbruch, Emil Ronfeldt, Annis Thorson and Lynn Potter, Appellants, v
Case Date:August 05, 1957
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 809

247 F.2d 809 (8th Cir. 1957)

114 U.S.P.Q. 382

IOWA FARMERS UNION (Formerly Farmers Educational and Co-operative Union of America, Iowa Division), and Iowa Union Farmers Association, and Fred W. Stover, Charles Shearn, George Wharam, Betty Lownes, Lee Harthan, Elmer Gustafson, LeRoy Martin, George Rose, Gustav Mohr, Lester Muhlenbruch, Emil Ronfeldt, Annis Thorson and Lynn Potter, Appellants,

v.

FARMERS' EDUCATIONAL AND CO-OPERATIVE UNION of American, A Corporation, Appellee.

No. 15635.

United States Court of Appeals, Eighth Circuit.

August 5, 1957

Rehearing Denied Sept. 30, 1957.

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[Copyrighted Material Omitted]

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James R. McManus, Des Moines, Iowa (George Cosson and Clarence Cosson, Des Moines, Iowa, were with him on the brief), for appellants.

Frederic M. Miller, Des Moines, Iowa (Sherwin J. Markman, Des Moines, Iowa, and Charles F. Brannan, Denver, Colo., were with him on the brief), for appellee.

Before WOODROUGH, VOGEL and VAN OOSTERHOUT, Circuit Judges.

WOODROUGH, Circuit Judge.

This action was brought by Farmers' Educational and Cooperative Union of American, a Texas corporation, against Farmers Educational and Cooperative Union of America, Iowa Division, and Service Association, a corporation, and others, to enjoin the defendants from an alleged infringement of three of plaintiff's trade marks, all of which are registered on the Principal Register of the United States Patent Office. The trade Marks are, (1) a symbol and service mark, consisting of a plow, rake and hoe, surrounded by a circle, (2) a collective mark for goods, consisting of the words, 'Union Farmer', used for newspapers published by plaintiff and its divisional organizations, and (3) a service mark, consisting of the words 'Farmers Union', used by plaintiff in the sale and advertisement of services.

On the trial of the case the court held that federal jurisdiction was conferred by the Lanham Act of 1946, 15 U.S.C.A. § 1051 et seq., and rendered judgment for plaintiff in accord with the opinion reported at D.C., 141 F.Supp. 820 and findings of fact and conclusions of law which are appended. 1

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The injunction ordered is also appended. 2

It appears from the record that there are three old and generally well known

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farmers organizations in the United States, namely, the 'Farm Bureau', 'The National Grange' and the 'Farmers Union' which have endured a long time more or less in the public eye and the plaintiff in this action is the last named, to-wit: 'Farmers Union.' Its general plan is and has always been to have local unions formed which are federated with county units and these with a state organization and when there has been due compliance with its requirements, it issues a charter to the state organization, and in that way every individual member of a local union becomes a member of the national Farmers Union and entitled to share in its many and varied activities and advantages. Since 1906 the national organization has actively sought and enlisted members, organized farmer cooperatives, published numerous books and pamphlets and a weekly newspaper named 'National Union Farmer'. Many of its component unions under the authority of their respective charters have for many years published newspapers with 'Union Farmer' as part of the name completed with the name of the state or locality.

Plaintiff's function in connection with its 18 state divisions and in the 29 states in which it has members is to foster and maintain local and state organizations and through organization aid in improving conditions of life of the farmers. The various agricultural publications, the weekly newspaper and the Washington news letter are sent to some 375, 000 farm families in the United States on a paid subscription basis and the record shows the budget for the weekly newspaper to be in the neighborhood of $70, 000 a year. In terms of all publications issued to members bearing the name 'Farmers Union' the cost is in excess of one million dollars a year.

The first local Farmers Union in Iowa was chartered on January 25, 1915, and between January 20, 1915, and September 24, 1917, a total of 236 local unions and 8 County unions were chartered in Iowa. The charter of the defendant corporation was granted in 1917, and conferred upon it the right to use the trade marks and name 'Iowa Farmers Union' or 'Farmers Union in Iowa' in soliciting funds and members and identifying itself and its activities as a component division of the plaintiff. It always availed itself of that right and so held itself out. In March of 1954, its charter was legally revoked by plaintiff as was conceded on the trial and all rights under it were withdrawn.

Notwithstanding the revocation, the individual Iowa defendants and through them, the Iowa organizations have continued to carry on the same activities under the name 'Iowa Farmers Union' or 'Farmers Union in Iowa' and to use the same trade marks as they did before the revocation. They caused a new Iowa corporation to be organized, bearing the name by which the plaintiff is commonly called and they carried on as before. They admit they have no right to use the registered symbol and service mark consisting of the plow, hoe and rake belonging to plaintiff and will desist from such use, but they admit they are using and will use the plaintiff's registered trade marks, 'Union Farmer' and 'Farmers Union'. They appeal from the decree of injunction rendered against them forbidding them to do so.

Although the court's findings of fact were extended and comprehensive, appellants assert insufficiency of evidence only as to the paragraphs of the findings numbered five, ten, twelve and thirteen.

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In paragraph five the court found that defendants' use of the marks 'Union Farmer' and 'Farmers Union' was in direct competition with the plaintiff and we think the finding is fully supported by the evidence. From 1917 to 1954 defendant Iowa Farmers Union operated under a charter from plaintiff as an integral part of plaintiff as plaintiff's Iowa division. In March, 1954, the charter was lawfully revoked as conceded and since the revocation the individual defendants have operated the corporations the same as before, but without contact with plaintiff. Plaintiff is conducting a campaign to reestablish its Iowa division and replace the disfranchised organization and in direct opposition defendants conduct their campaign for members. Defendants continue to publish the Iowa Union Farmer the same as they did when they were members of the Iowa Division of plaintiff. The plaintiff has operated on a national scale for fifty years. It publishes the newspaper National Union Farmer and has State organizations in 18 of the 29 States in which it has members and at least nine of these publish newspapers using plaintiff's mark 'Union Farmer.' Defendants in using the name Iowa Farmers Union not only use plaintiff's registered mark 'Farmers Union', but also use a name that is identical with the name by which plaintiff's State organizations are commonly known as well as the name by which defendant was known when it belonged to and constituted the Iowa Division of the plaintiff. Obviously the plaintiff and defendants are engaged in the same line of endeavor by the same kind of activities in the same field and defendants' use of plaintiff's mark is in direct competition with plaintiff as found by the court.

In paragraph ten of the findings, the court found that defendant Iowa Union Farmer Association publishes a newspaper under the name Iowa Union Farmer, whose mark resembles those of plaintiff's state organization newspapers. Such publication was admitted in defendant's pleading. The name of plaintiff's national newspaper is National Union Farmer. Plaintiff's Kansas Division publishes a newspaper named the 'Kansas Union Farmer'; Illinois, the 'Illinois Union Farmer'; Arkansas, the 'Arkansas Union Farmer'; Indiana, the 'Indiana Union Farmer'; the Rocky Mountain Division, the 'Rocky Mountain Union Farmer'; North Dakota, the 'North Dakota Union Farmer'; Nebraska, the 'Nebraska Union Farmer'; South Dakota, the 'South Dakota Union Farmer'; Oklahoma, the 'Oklahoma Union Farmer' and Virginia, the 'Virginia Union Farmer.'

The court's finding of fact No. 10 that the defendant, Iowa Union Farmer Association publishes a newspaper under the name of 'Iowa Union Farmer', whose mark resembles those of plaintiff's state organization newspapers is supported by and in accord with the evidence.

In paragraph 12 the court found as follows:

'12. Defendants' activities in Iowa have affected plaintiff's interstate activities as well as in Iowa and defendants' activities have received some national publicity. The use by the defendants of the marks, 'Union Farmer' and 'Farmers Union' is in direct competition with the plaintiff. The types of service offered and the names used are so similar that there is bound to be confusion. The evidence shows that confusion has occurred and demonstrates that confusion will reoccur. Defendants' activities adversely and seriously affect plaintiff's national organization and its nationwide program.'

Following the cancellation of the charter of its Iowa Division, the plaintiff employed one Maurice O'Reilley as organizing...

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