John Walker & Sons v. Tampa Cigar Co.
| Decision Date | 23 May 1952 |
| Docket Number | No. 13837.,13837. |
| Citation | 197 F.2d 72 |
| Parties | JOHN WALKER & SONS, Limited v. TAMPA CIGAR CO., Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Harry B. Terrell, Tampa, Fla., Ellis W. Leavenworth, New York City, for appellant.
E. O. Palermo, Tampa, Fla., for appellee.
Before HUTCHESON, Chief Judge, and BORAH, and STRUM, Circuit Judges.
Plaintiff-appellant, as the registered owner of two trademarks for a blend of straight Scotch whiskies, brought this suit for trademark infringement and unfair trade practices, praying that the court enjoin the defendant from using the name of Johnnie Walker upon or in connection with the sale of cigars and for an accounting of profits, damages, costs, and destruction of infringing labels, signs, prints, packages, wrappers, receptacles, advertisements, etc., in the possession of the defendant.
In response to the complaint the defendant moved to dismiss the action on the ground that the complaint failed to state a claim upon which relief could be granted. The cause came on for hearing upon the motion to dismiss and after hearing argument of counsel the court entered its order granting the motion without leave to amend. To reverse that order, this appeal is prosecuted.
Briefly stated, the complaint alleges that plaintiff, the registered owner of the trademarks Johnnie Walker and a picture of Johnnie Walker, is a British corporation which manufactures and sells a blend of straight Scotch whiskies. For many years it has shipped whiskey to the United States, where it has been extensively advertised and sold throughout the country under the name and picture of Johnnie Walker. In consequence, Johnnie Walker Scotch Whiskey has been known, recognized, and identified by these two trademarks and a valuable good will attaches to each of them. The defendant, a Florida corporation, manufactures and sells cigars. Long after the dates of the first use of plaintiff's trademarks in the United States, the defendant started using the name Johnnie Walker on its cigars and, in association with the name, has been using a picture of a man wearing a high hat and holding in his hand a monocle, which is but a colorable imitation of the head and shoulders of the plaintiff's picture of Johnnie Walker. The defendant's use of the name Johnnie Walker has been without the plaintiff's consent and although the plaintiff has demanded that the defendant discontinue such use, it has not done so. The complaint charges that the use of the name is likely to cause confusion, or mistake, or to deceive purchasers as to the origin of defendant's cigars, and is likely to create the erroneous impression that defendant's cigars originate with plaintiff, or are endorsed by the plaintiff; that the defendant has acted with full knowledge of the good will attaching to the...
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...being the test of sufficiency of a complaint, we must reverse the judgment if the complaint satisfies this test. John Walker & Sons v. Tampa Cigar Co., 5 Cir., 197 F.2d 72; Byrd v. Bates, 5 Cir., 220 F.2d The complaint alleges that Sunbeam Corporation has for more than thirty years been eng......
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Slaughter v. Torres
...a claim upon which relief might be granted.’ " Byrd v. Bates , 220 F.2d 480, 482 (5th Cir. 1955) (quoting John Walker & Sons v. Tampa Cigar Co. , 197 F.2d 72, 73 (5th Cir. 1952) ). The Fifth Circuit has further stated:In view of the consequences of dismissal on the complaint alone, and the ......
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Banco Continental v. Curtiss Nat. Bank of Miami Springs
...Surety Co. of N. Y., 5 Cir., 1965, 347 F.2d 18; Campbell v. Barnett, 10 Cir., 1965, 351 F.2d 342. 3 See also John Walker & Sons v. Tampa Cigar Co., 5 Cir., 1952, 197 F.2d 72, 73; Byrd v. Bates, 5 Cir., 1955, 220 F.2d 480, 482; Sunbeam Corporation v. Masters of Miami, 5 Cir., 1955, 225 F.2d ......
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Slaughter v. Torres
...... . . JOHN. W. DEGRAVELLES UNITED STATES DISTRICT COURT JUDGE. ...1955). . 21 . . (quoting John Walker & Sons v. Tampa Cigar Co. ,. 197 F.2d 72, 73 (5th ......