Adolph Kastor & Bros. v. Federal Trade Commission
| Citation | 138 F.2d 824 |
| Decision Date | 12 November 1943 |
| Docket Number | No. 1.,1. |
| Parties | ADOLPH KASTOR & BROS., Inc., v. FEDERAL TRADE COMMISSION. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Sylvan Gotshal, of New York City, for petitioner.
Joseph J. Smith, Jr., of Washington, D. C., for respondent.
Boy Scouts of America, amicus curiae.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
This case comes before us upon a petition to review an order of the Federal Trade Commission which forbade the petitioner to use the words, "Scout," "Boy Scout," or "Scouting," upon, or in connection with, any knives made or sold by it. The facts upon which the order issued are in substance as follows. The Kastor Company, or its predecessor — a partnership — has been making and selling cutlery and the like since 1879; and the subject of this controversy is a "Scout Set," comprising a three-bladed "Scout Knife," and a "Sportsman's Knife," sold together in a box, for fifty cents. The "Scout Knife" has one large cutting blade, a can opener, and a combination screw driver and bottle opener; the "Sportsman's Knife" is a hunting knife with one large blade and a bone handle. On the cover of the cardboard box it used to print the words, "Scouting Set," with the picture of a tent, a campfire, and boys in "Boy Scout's" uniform; but this box it discarded some years ago, and it now sells the set in a plain box. It also makes and sells a four-bladed "Scout Knife" like the three-bladed knife just mentioned, except that this knife has a leather punch in addition to the other tools. It introduced testimony that it had begun selling a similar "German Army" knife, marked "Scout Knife," as early as 1895 like the present "Scout Knife"; and that before 1910 it had also imported from England, and sold, hatchets and knives with the words, "Boy Scout," on the blades. The Commission found that before 1910 "there was and had been no pocket knife on the market marked with the word `Scout'"; but it is not necessary for us to decide whether the testimony should have prevailed, because, as will appear, such user would be in any event immaterial, whatever its length. In the year 1910, the sale began which the order forbids and it has continued ever since except that the legend, "Boy Scout" was discontinued more than fifteen years ago, giving place to "Scout," simpliciter.
The Boy Scouts of America is a corporation organized under the laws of the District of Columbia on February 8, 1910; its general activities are so well known that it is scarcely necessary to describe them in detail. At present there are sold with its consent and by its license two-bladed knives costing $1.50, which bear the legend, "Official Knife — Boy Scouts of America," the insignia of the organization, and the motto — "Be Prepared." On the handle of these there is a disc which also carries the insignia, and on the box in which it is sold the insignia appear. No knives sold with its consent — no "official knives" — bear merely the words, "Scout," or "Boy Scout." The Commission has found, however, that "even before the incorporation of the Boy Scouts of America, the words `Scout' and `Scouting' had acquired a secondary meaning as applying to the Boy Scout movement." There was adequate support for that conclusion in the testimony of persons who were in a position to know the public mind, and whom the Commission credited. Indeed, the Commissioner of Patents refused to register the name, "Winchester Scout" as a trade-mark for pocket knives upon the opposition of the Boy Scouts of America. Boy Scouts of America v. Winchester Repeating Arms Co., 15 Trade Mark Reporter 142. See, also, In re Excelsior Shoe Company, 40 App.D.C. 480. At the outset we hold therefore that the word, "Scout," when applied to a boy's pocket knife, suggests, if indeed it does not actually indicate, that the knife is in some way sponsored by the Boy Scouts of America. It is true that this suggestion is vague; it does not mean...
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