323 F.2d 986 (9th Cir. 1963), 17320, Du Barry of Hollywood, Inc. v. Richard Hudnut

Docket Nº:17320.
Citation:323 F.2d 986, 139 U.S.P.Q. 112
Party Name:DU BARRY OF HOLLYWOOD, INC., a corporation, Appellant, v. RICHARD HUDNUT, a corporation, Appellee.
Case Date:October 10, 1963
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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323 F.2d 986 (9th Cir. 1963)

139 U.S.P.Q. 112

DU BARRY OF HOLLYWOOD, INC., a corporation, Appellant,

v.

RICHARD HUDNUT, a corporation, Appellee.

No. 17320.

United States Court of Appeals, Ninth Circuit.

October 10, 1963

Horton & Foote and Joseph K. Horton, Los Angeles, Cal., Mudge, Stern, Baldwin & Todd, Paul D. Miller, Milton Black and Stuart A. Summit, New York City, for appellee.

Before STEPHENS, JERTBERG and BROWNING, Circuit Judges.

STEPHENS, Circuit Judge.

This is an action for infringement of plaintiff-appellee's registered trade-mark 'Du Barry,' and some modification of the name 'Du Barry,' and for unfair competition in connection therewith. Appellee Richard Hudnut, a New York corporation, brought this action in December, 1959, against Du Barry of Hollywood, Inc., alleging trade-mark infringement and unfair competition in that the defendant-appellant used the designation 'Du Barry' in connection with its products, in its advertising, and in its corporate name, and, further, that it used a type of script and representation of a crown on some of its products similar to the script and crown used by and identified with Hudnut.

Federal jurisdiction is based on diversity of citizenship and the Trade Mark Acts of 1905 and 1946, as amended. 15 U.S.C. § 1051 et seq. Jurisdiction of the pendant claim of unfair competition is based on 28 U.S.C. § 1338(b).

The district court found that the plaintiff-appellee was the owner of valid and subsisting trade-mark rights for the name 'Du Barry' in the field of toilet goods, cosmetics, and broadly related fields of products for woman's comfort, used in her eternal quest for apparent

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youth and pleasant appearance. The court held that the products of both plaintiff and defendant were of the 'same general class,' and that defendant's use of the name 'Du Barry' was likely to cause confusion and deceive the purchaser as to the source or origin of the goods so marked.

The trial court further found that the defendant's products and trade paper advertising were conspicuously labeled with the trade-mark and trade name 'Du Barry,' 'By Du Barry,' or 'From Du Barry,' often printed in substantially the same style of script which is displayed by the plaintiff on its products.

The district court held that the defendant had infringed Hudnut's trade-mark rights, and, in so doing, had been guilty...

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