360 F.2d 16 (6th Cir. 1966), 16367, Atlas Supply Co. v. Atlas Brake Shops, Inc.

Docket Nº:16367.
Citation:360 F.2d 16, 149 U.S.P.Q. 591
Party Name:ATLAS SUPPLY COMPANY, Plaintiff-Appellee, v. ATLAS BRAKE SHOPS, INC., Defendant-Appellant.
Case Date:May 10, 1966
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 16

360 F.2d 16 (6th Cir. 1966)

149 U.S.P.Q. 591

ATLAS SUPPLY COMPANY, Plaintiff-Appellee,

v.

ATLAS BRAKE SHOPS, INC., Defendant-Appellant.

No. 16367.

United States Court of Appeals, Sixth Circuit.

May 10, 1966

Page 17

William Tousley Smith, Cleveland, Ohio, McAfee, Hanning, Newcomer, Hazlett & Wheeler, Cleveland, Ohio, John A. Benjamin, Benjamin & Faulkner, Cincinnati, Ohio, on brief, for appellee.

Before WEICK, Chief Judge, O'SULLIVAN, Circuit Judge, and CECIL, Senior Circuit Judge.

WEICK, Chief Judge.

This is an appeal from an order of the District Court granting a summary judgment to appellee, Atlas Supply Company. The facts have been stipulated. Atlas Supply Company is a corporation established to acquire and maintain the 'Atlas' trademark for automobile tires, batteries and accessories, referred to in the industry as 'T.B.A.' Atlas accessories included brakes. The corporation licenses several Standard Oil companies throughout the nation to use the Atlas trademark on these products. In the Cincinnati, Ohio area only the Sohio corporation is licensed to use the Atlas trademark on these products, which are sold by its service station outlets. Atlas Supply Company neither manufactures nor sells the products which bear its trademark. It has sixty-eight registrations in the United States Patent Office for its Atlas trademark as applied to T.B.A.

Appellant, Atlas Brake Shops, Inc., is engaged in the Cincinnati, Ohio area in the retail sale and installation of brakes and parts therefor, at three garages. Appellant sells relined brakes which are made up of new brake lining bonded on used brake shoes. They are purchased from various independent rebonders.

Appellee's licensees sell only new brakes.

The brakes, parts, and packages sold by appellant do not bear the 'Atlas' designation; however, its identifying and advertising signs at its three garage locations are labelled 'Atlas Brake Shops, Inc.' In addition, it advertises its products in the local newspaper as 'Atlas Brakes,' and it is listed in the local telephone book as 'Atlas Brake Shops.' Appellant also carries an 'Atlas Brake' designation on its customer receipts and guarantee certificate forms.

Appellant began selling its service and products in the Cincinnati area in 1959. Sohio service stations started selling T.B.A. trademarked 'Atlas' in the Cincinnati area in 1930, but...

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