Libby, McNeill & Libby v. Libby
| Decision Date | 11 February 1952 |
| Docket Number | Civ. A. No. 51-735. |
| Citation | 103 F. Supp. 968 |
| Court | U.S. District Court — District of Massachusetts |
| Parties | LIBBY, McNEILL & LIBBY v. LIBBY et al. |
Arthur D. Thomson and Thomson & Thomson, all of Boston, Mass., Beverly W. Pattishall, Lewis S. Garner, and William T. Woodson of Rogers & Woodson, all of Chicago, Ill., for plaintiff.
W. Arthur Garrity, Jr. (of Maguire, Roche & Garrity), Frank D. McCarthy, all of Boston, Mass., for defendants.
In this action the plaintiff seeks to enjoin, and recover damages for, an alleged infringement of its trade-mark and for unfair competition.
Findings of Fact.
In 1947 when the defendant Andrew Libby became a naturalized citizen he adopted the name of Andrew G. Libby. Up to 1951 he ran a diner lunch service in Roslindale, Massachusetts, and early in January of 1951, having disposed of his diner he and his wife, Mary, opened a super market in West Dennis, Massachusetts, under the name of "Libby's Super Market".
The plaintiff is a well-known meat packer and since 1894 has continuously used the name "Libby's" as a trade-mark and has registered it in both the United States Patent Office and in the Commonwealth of Massachusetts. The name has acquired a secondary meaning as indicating the plaintiff's products, which the defendants do not deny. Jurisdiction of this Court is invoked under the trade-mark laws of the United States, 15 U.S.C.A. §§ 1051 through 1127, and also on the ground of diversity of citizenship, there being an allegation that there is more than $3,000 involved. In spite of the claim made for damages in the Complaint, the plaintiff in open court waived that claim and now seeks merely an injunction against the use by the defendants of the word "Libby's" when unattended by some other qualifying word which would serve to eliminate any possible confusion in the minds of the public as to the connection between this market and the plaintiff.
From the facts that were proven at the trial, I cannot find a violation of the Federal trade-mark statute. To entitle one to relief under this statute it must be proven that the acts of the defendants which are complained of took place in interstate commerce or in commerce that can be lawfully regulated by Congress, United States Trade-Mark Act of 1946, Lanham Act Sections 32 and 45. The plaintiff offered no evidence on this point and it did not even plead an interstate use by the defendants. While it is conceded that Congress has the power to act in respect of matters in intrastate commerce if those matters substantially affect interstate commerce, in the present case the goods sold locally by the defendants which originated outside of the state had come to rest in Massachusetts and interstate commerce had ceased. R. P. Hazzard Co. v. Emerson's Shoes, Inc., D.C., 89 F.Supp. 211, 216. The plaintiff's failure to make out a case under this proposition precludes it from any relief under the Federal trade-mark statute for an alleged trade-mark infringement.
With regard to the claim for unfair competition, the defendants have urged that since this Court's jurisdiction is grounded on diversity of citizenship and since the plaintiff in open court has waived any claim for damages, the $3,000 statutory requirement is not met and the court has no jurisdiction. This is not a correct view of the matter. In determining the amount involved it is the value of the thing involved at the time suit was filed and not at some later date which affects the Court's jurisdiction, Lester v. Prudential Ins. Co. of America, D.C., 24 F.Supp. 54, and the value of the thing involved is not the amount that is sought to be recovered but the value of the thing about which the controversy exists. Baker v. Master Printers Union of New Jersey, D.C., 34 F.Supp. 808. See R. P. Hazzard Co. v. Emerson's Shoes, Inc., supra, and Folmer Graflex Corporation v. Graphic Photo Service, D.C., 44 F.Supp. 429, where despite the fact that the plaintiff waived his claim for damages in a diversity suit for unfair competition, the Court retained jurisdiction of the cause.
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