National Drying & Machinery Company v. Ackoff

• Decision Date: 15 February 1955
• Docket Number: Civ. A. No. 15589.
• Citation: 129 F. Supp. 389
• Parties: The NATIONAL DRYING MACHINERY COMPANY v. Jack ACKOFF, Individually and t/a Jack Ackoff Company.
• Court: U.S. District Court — Eastern District of Pennsylvania

129 F. Supp. 389

The NATIONAL DRYING MACHINERY COMPANY v. Jack ACKOFF, Individually and t/a Jack Ackoff Company.

Civ. A. No. 15589.

United States District Court, E. D. Pennsylvania.

February 15, 1955.

Daniel Mungall, Jr., Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for plaintiff.

Louis Necho, Philadelphia, Pa., for defendant.

KIRKPATRICK, Chief Judge.

The plaintiff is engaged in manufacturing hot air drying machines for industrial use, principally in the textile field. Ackoff, the record defendant, sold electric hand dryers manufactured by National Dryer Manufacturing Corporation and distributed by National Dryer Sales Corporation. He has raised a number of defenses and filed a counterclaim based on the activities of his suppliers, and, so far as the trademark phase of this case is concerned, it will simplify the discussion if these two companies are treated as one and called "the defendant".

The plaintiff has been continuously engaged in business (under the same business name) and has been using its trademark upon its drying machines since at least 1929. The trademark was registered under the Act of 1905 and was, on March 25, 1952, re-registered under the Act of 1946, 15 U.S.C.A. § 1051 et seq. As registered, it consists of the word "National" in capital letters printed in an irregular line across an outline map of the United States. The registration, however, disclaims the map and the plaintiff relies entirely upon the word, "National". The defendant and its predecessors have manufactured and sold their hand dryer since 1948 or thereabouts and, since January 1950 the defendant has continuously used the words "National Dryer" as its trademark.

I find it to be the fact that use by the defendant of its trademark has caused confusion and deceived prospective purchasers as to the source or origin of the defendant's machines and that it is likely to continue to do so in the future. This is the basis for liability under the Act of 1946. That Act dropped the limitation contained in the corresponding section of the Act of 1905 to the effect that the defendant must have used the registered mark on merchandise of substantially the same descriptive properties as those set forth in the registration. There is a difference of judicial opinion as to the limits of protection given to a trademark. Even under the narrowest view — the one which accords protection only in cases where there is not only a likelihood of confusion of source but also actual competition in the trademarked articles — a manufacturer will be protected if the product on which his trademark is being used by another is fairly within the normal field of expansion of his business, because it would be natural for purchasers acquainted with the former business and the mark to assume that the new product bearing the same mark was produced by the same manufacturer.

In the present case the defendant's argument is, in effect, that the evidence produced by the plaintiff of actual instances of confusion is so slight as to be negligible and that likelihood of confusion is negatived by the difference in the articles sold by the parties, the methods of merchandising and the class of customers addressed by each through advertising and solicitation. To this the defendant adds the admitted fact that the mark is a weak one, that the defendant has without fraudulent intent built up a considerable goodwill of its own and that the plaintiff's declaration of its intention to engage in the manufacture of hand dryers competing with the defendant's is, at least, suspect. There is no suggestion that there is any real danger of the plaintiff's product being brought into disrepute by the defendant's use of the name and, actually, the case comes down...