Alum-A-Fold Shutter Corp. v. Folding Shutter Corp.
| Decision Date | 07 May 1971 |
| Docket Number | No. 30913.,30913. |
| Citation | 441 F.2d 556 |
| Parties | ALUM-A-FOLD SHUTTER CORPORATION, Plaintiff-Appellant, v. FOLDING SHUTTER CORPORATION et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John Cyril Malloy, W. H. Stiles, Miami, Fla., for plaintiff-appellant.
William Phillips, Morton A. Orbach, Phillips & Phillips, P.A., Miami, Fla., for defendants-appellees.
Before WISDOM, BELL and AINSWORTH, Circuit Judges.
Appellant brought this action in the district court seeking relief against a competitor in the aluminum shutter business for what was styled false representations and misrepresentations in the origin and description of goods in commerce. Jurisdiction was predicated on § 43(a) of the Lanham Act, 15 U.S.C.A. § 1125. See also 15 U.S.C.A. § 1121.1 The district court dismissed on defendant's motion for lack of jurisdiction, grounding its decision on our opinion in Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., 5 Cir., 1957, 240 F.2d 814. We reverse.
In a case coming to us as this one does from a dismissal on the complaint, we must take the allegations of the complaint as true. We must also apply the rule that a complaint is not to be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80. Barber v. Motor Vessel "Blue Cat", 5 Cir., 1967, 372 F.2d 626. These rules are applicable in a situation such as that presented here where the factual allegations are determinative of jurisdiction.
Appellant is in the business of manufacturing folding aluminum shutters. In connection with this work it designed, manufactured and sold shutters which were of its original design. In connection with these sales, appellant authored certain literature with drawings and specifications relating to its shutters. This advertising material was used widely and extensively in sales efforts by appellant.
It was also alleged that defendant copied the shutters being manufactured and sold by appellant and also copied and published as its own the advertising material of appellant. This material depicted, illustrated and referred to shutters sold by the parties in interstate commerce.
We agree with the district court that "no independent ground of federal jurisdiction for unfair competition was created by the Lanham Act" under § 44. 15 U.S.C.A. § 1126. Royal Lace Paper Works, Inc. v. Pest-Guard Products, Inc., supra; L'Aiglon Apparel, Inc. v. Lana Lobell, Inc., 3 Cir., 1954, 214 F.2d 649; American Auto Association v. Spiegel, 2 Cir., 1953, 205 F.2d 771. However a different outcome obtains under § 43(a). That section provides in part that "(a)ny person who shall * * * use in connection with any goods or services * * * any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce * * * shall be liable to a civil action by * * * any person who believes that he is or is likely to be damaged by the use of any such false description or representation." 15 U.S.C. § 1125(a).
While we have not had occasion to pass on this section of the Act, other jurisdictions have uniformly held that it does create a federal cause of action for false representation of goods in commerce. Samson Crane Co. v. Union National Sales, Inc., D.C.Mass.1949, 87 F. Supp. 218, aff'd per curiam, 1 Cir. 1950, 180 F.2d 896; L'Aiglon Apparel, Inc. v. Lana Lobell, Inc., supra; Federal-Mogul-Bower Bearings, Inc. v. Azoff, 6 Cir. 1963, 313 F.2d 405; Bernard Food Industries, Inc. v. Dietene Co., 7 Cir. 1969, 415 F.2d 1279; Turner Hall Corporation v. Stylors, Inc., S.D.Fla. 1962, 207 F. Supp. 865. We think the Third Circuit correctly interpreted this section in L'Aiglon Apparel v. Lana Lobell, Inc., supra:
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