Ambassador East v. Orsatti, Inc.

• Decision Date: 10 October 1957
• Docket Number: Civ. A. No. 16658.
• Citation: 155 F. Supp. 937
• Parties: AMBASSADOR EAST, Inc., v. ORSATTI, Inc. and Arnold Orsatti.
• Court: U.S. District Court — Eastern District of Pennsylvania

155 F. Supp. 937

AMBASSADOR EAST, Inc., v. ORSATTI, Inc. and Arnold Orsatti.

Civ. A. No. 16658.

United States District Court E. D. Pennsylvania.

October 10, 1957.

Louis J. Goffman, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for plaintiff.

Edward W. Mullinix, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for defendants.

VAN DUSEN, District Judge.

This is an action brought by the owner of a Chicago restaurant, which has used and widely advertised the name "Pump Room" since 1938, to enjoin defendants from using that name for a Philadelphia restaurant. Defendants used this name on the initial menu adopted in 1951, still use it on a neon sign over the main entrance, but, in general, have referred to this restaurant since suit was brought as "Orsatti's Pump Room."¹ The hearing judge has concluded that defendants' motion for dismissal of the action, made at the conclusion of plaintiff's case, must be granted for failure of the plaintiff to sustain the burden of proving that the amount in controversy is in excess of $3,000. See 28 U.S.C.A. § 1331; Kaufman v. Liberty Mutual Insurance Company, 3 Cir., 1957, 245 F.2d 918. Although the defendants' answer admitted the allegation in plaintiff's complaint (paragraph 3) that the amount in controversy exceeded $3,000, defendants stated at page 31 of their brief, filed 9/4/57, "After study of the question, we have concluded that jurisdiction is lacking." F. R.Civ.P. 12(h), 28 U.S.C.A., provides:

"Whenever it appears by suggestion of the parties or otherwise, that the court lacks jurisdiction of the subject matter, the court shall dismiss the action * * *"

As stated in Page v. Wright, 7 Cir., 1940, 116 F.2d 449, 453:

"* * * the conclusion seems inescapable that the duty devolves upon the court `at any time' the jurisdictional question is presented to proceed no further until that question is determined. It can not be conferred by agreement, consent or collusion of the parties, whether contained in their pleadings or otherwise, and a party can not be precluded from raising the question by any form of laches, waiver or estoppel."

See, also, Brown v. Fennell, D.C.E.D.Pa., 155 F.Supp. 424.

In a case such as this, where the decor and general operation of the two restaurants using the trade name is so dissimilar and there is no showing either of confusion in the minds of people in the Philadelphia area or that defendants' operation is of an inferior or poor type (though admittedly different, as well as less elaborate and flamboyant), the method of calculating jurisdictional amount adopted by Chief Judge Charles E. Clark in Pure Oil Co. v. Puritan Oil Co., Inc., D.C.D.Conn.1941, 39 F.Supp. 68, reversed on other grounds 2 Cir., 1942, 127 F.2d 6, is applicable. The injury, present and prospective, inflicted upon plaintiff's trade name, "Pump Room," by defendants' conduct is the measure of the jurisdictional amount. See also, Draper v. Skerrett, C.C.E.D.Pa.1902, 116 F. 206, 207-208;² Food Fair Stores v. Food Fair, D.C.D.Mass.1948, 83 F.Supp. 445, 452, affirmed 1 Cir., 1949, 177 F.2d 177; cf. Seagram Distillers, Inc., v. New Cut Rate Liquors, Inc., 7 Cir., 1957, 245 F. 2d 453, 455-459.³

Plaintiff has not sustained its burden of proving that the value of such injury is in excess of $3,000 and the cases relied on by it are distinguishable for these reasons, among others:

1. Plaintiff is not operating any restaurant in this jurisdiction⁴ or within 100 miles of defendants' restaurant. Since plaintiff offered evidence to prove that it was negotiating for the acquisition of a restaurant in New York (N. T. 81),⁵ the order dismissing the action will be without prejudice to plaintiff's right to apply for modification of the order if a restaurant is acquired by plaintiff within 100 miles of City Hall, Philadelphia, within ten months of the last day of the trial (4/9/57).⁶

2. The only evidence offered by plaintiff suggesting that defendants could possibly be inflicting any injury, present or prospective, on plaintiff's trade name was that in the last five years over 600 Philadelphians had stayed at their hotels (Exhibit P-17; N.T. 37). There was no showing that these particular people had ever been to either plaintiff's Pump Room or Orsatti's Pump Room,⁷ nor was there any evidence of confusion of the two restaurants in anyone's mind.

3. Assuming that the value to defendants of capitalizing on the good will built up by plaintiff in the trade name "Pump Room" is the measure of damages,⁸ there is no showing that any of defendants' customers have heard of the plaintiff's restaurant.

In the event that the hearing judge should be in error in his conclusion that this court does not have jurisdiction of this suit, the Findings of Fact and Conclusions of Law he would make on the merits are stated below:

I. Findings of Fact

1. Paragraphs 1, 2, 4-8,⁹ 10-17, and 19-22 of plaintiff's Requests for Findings of Fact and paragraphs 4-15, 17-22, 24-28, 30, 31, 38 and 39 of defendants' Requests for Findings of Fact are adopted as Findings of Fact by the court.

2. Defendants have used the words "Pump Room" without qualification by insertion of the word "Orsatti's" before those two words on these occasions, among others:

A. The words "Pump Room Menu" were printed at the top of the menu used by defendants in 1951 (P-55).

B. The words "The Pump Room" have been used by defendants in window displays at the Locust Street entrance to its restaurant (P-47 and P-49).

C. The words "Pump Room" are used on a neon sign over the Locust Street entrance to the defendants' restaurant (P-51, P-52).¹⁰

D. The name "Pump Room" appears on the canopy covering the Locust Street entrance to defendants' restaurant in white lettering, whereas the name "Orsatti's" appears in dark letters on the slanting part of the canopy, above the name "Pump Room", and is not as readily visible as the words "Pump Room" on this canopy (P-48, P-51, P-52).

E. In the October 1955 Philadelphia Classified Telephone Directory, issued by the Bell Telephone Company of Pennsylvania, this listing appeared at page 1050 under the letter "P": "Pump Room Orsatti's" (Exhibit 77B).

F. On a menu used at times from 1952-1956 (N.T. 112-6), the words "Pump Room" appear at the top of the cover of the menu, whereas the name "Orsatti's" appears at the bottom of this menu cover.

G. In numerous advertisements, the name "Pump Room" appears alone and separated from the name "Orsatti's."¹¹

3. Defendants have used plaintiff's reproduction of a pump, which insignia has been consistently used by plaintiff in its advertising and literature since 1938 (see P-6, P-7, P-20 to P-23, P-30 and P-2) on the following occasions:

A. Advertisement at page 1040 of October 1953 Philadelphia Classified Telephone Directory issued by the Bell Telephone Company of Pennsylvania (D-13 at D-13A).

B. Advertisement at page 1046 of Philadelphia Classified Telephone Directory of October 1955 (P-77 at P-77B).

C. On its match covers advertising the "Pump Room" (P-57; cf. P-58, containing a similar but very slightly different pump).

D. On its menu used from 1952 to 1956 (P-53, N.T. 112-6).

E. On its "swizzle sticks" used for mixing drinks (P-56).

4. By 1951, the defendant Arnold Orsatti was one of the most successful cafe and restaurant operators in midtown Philadelphia and at the New Jersey seashore. The Orsatti name was familiar, well known, and prominent in this field in mid-town Philadelphia and at the New Jersey seashore (N.T. 141, 143).

5. Orsatti's Pump Room has a good reputation for good food and Arnold Orsatti is recognized as a good host (N. T. 150).

6. The words "Pump Room" have a special significance as exclusively denominating and identifying plaintiff's restaurant, as distinguished from all other places in this country. See footnote 14 below.

7. Although the intent of defendants in adopting the name "Pump Room" in 1951 is not clear, their explanation for the adoption of this name as relating to a place alleged to have had that name in Philadelphia during the time of the Revolution does not seem plausible to the trial judge in view of defendants' admitted inability to confirm this in the records of the Historical Society.¹² Also, defendants' use of the identical pump insignia as that adopted and used by plaintiff for several years indicates that the use of this device was, at the least, one which a reasonable man should know might have the effect of making customers think that defendants' restaurant had some connection with that of the plaintiff's.¹³

8. Defendants' use of the name "Pump Room" when not immediately preceded by the word "Orsatti's" (see Finding of Fact No. 2) and defendants' use of the plaintiff's pump insignia (see Finding of Fact No. 3) are of such a nature that they are likely to cause confusion in the minds of the public between plaintiff's operation and defendants' operation.

9. In approximately early October 1956, plaintiff filed application in the United States Patent Office for registration of the name "Pump Room" as a service mark used in conjunction with an operation of a restaurant (N.T. 229-232), but no action had been taken by the United States Patent Office on this application as of the time of trial, April 8 and 9, 1957 (N.T. 233-4).

All requests for Findings of Fact which are inconsistent with the foregoing are denied.

II. Discussion

The trial judge finds that the name "Pump Room" has acquired a special significance as the name of plaintiff's restaurant in Chicago, since a substantial number of present or prospective customers understand these words, when capitalized, to refer to plaintiff's restaurant.¹⁴ See § 716, including comment b, Restatement of Torts; Stork Restaurant, Inc., v. Marcus, D.C.E.D.Pa.1941, 36 F.Supp. 90; Goebel Brewing Co. v. Esslingers, Inc., 1953, 373 Pa. 334, 340-342, 95 A.2d 523;¹⁵ Stork Restaurant, Inc., v. Sahati, 9 Cir., 1948, 166 F.2d 348; Ambassador East, Inc., v. Shelton Corners, Inc....