Durable Toy & Novelty Corporation v. J. Chein & Co.
| Decision Date | 04 February 1943 |
| Docket Number | No. 148.,148. |
| Citation | 133 F.2d 853 |
| Parties | DURABLE TOY & NOVELTY CORPORATION v. J. CHEIN & CO., Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Andrew Foulds, Jr., of New York City, for appellants.
John P. Chandler, of New York City, for appellee.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
The defendants appeal from a judgment enjoining them from using the name, "Uncle Sam" or "Uncle Sam's," upon a toy bank, and directing them to account to the plaintiff for profits and damages. The facts are as follows. The business of the plaintiff and of its predecessor (it will not be necessary to distinguish between them), has been and still is the manufacture of toy banks, which since 1907 it has continuously sold under three registered trade-marks, in all of which the most characteristic feature is the words, "Uncle Sam's." The banks have been marketed at between fifty-nine cents and two dollars and a half; that which has had the largest sale contained a registering device which automatically opens the bank when ten dollars have been deposited. The plaintiff has guaranteed all its banks against mechanical defects, has on occasion been called upon to respond, and has always done so. It has advertised very extensively for many years, and the mark may be assumed to have come to indicate to the buyers of toys for retail dealers generally throughout the country that the plaintiff makes any toy banks which bear it. The defendant, J. Chein & Co., Inc., makes tinware of various kinds, such as pails, dishes and the like; and in the early part of 1941, it added to these a rudely made tin toy bank, in shape and color made to imitate the hat which is part of the accredited costume of the figure, "Uncle Sam." A slit in the top received coins and the bottom was removable to take them out; upon the top was the legend: "Uncle Sam Bank." The retail price of this bank was only ten cents; the defendant, Woolworth Company, alone has sold it, but it has sold a very large number. Both defendants knew of the plaintiff's trade-mark during the period involved in the suit.
There is no basis for the assumption that anyone who bought one of the defendants' banks would be led to do so because he supposed that the plaintiff was its source. As we have said, the witnesses who testified that they knew the plaintiff's product by that name, were buyers of toys for retail dealers, and such buyers do not buy on the faith of a trade-mark, but are always directly acquainted with the seller with whom they deal. There is no reason to believe that anyone who bought the defendants' tawdry little gadget for use — any customer proper — has ever supposed that "Uncle Sam's" meant the plaintiff, or that it signified to him any single source whatever. Moreover, even if he had so supposed, there is not the slightest reason to think that it would have had any influence in determining him to buy; and every reason to believe that it would not. Such cheap trifles are bought on their face, so to say: for what they seem to be. Those who buy them care nothing who makes them, because they never even remotely expect to resort to the maker; nor do they rely upon his business integrity, or any proven quality of the wares.
If the plaintiff is to succeed in putting the defendants to an accounting, it must be, not because they have stolen its customers by masquerading under its name, but because it has acquired some monopoly of the words, "Uncle Sam," as such. That would, however, run counter to the whole basis of the law of the subject; for a trade-mark never really gives any property in the words themselves; all it does is so to identify the "owner" that its use by others can be said to divert to them customers who might otherwise have bought of him. Restatement of Torts; § 715, Comment b. ...
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