American Tin Plate Co. v. Licking Roller Mill Co.
| Decision Date | 01 April 1902 |
| Citation | 158 F. 690 |
| Parties | AMERICAN TIN PLATE CO. v. LICKING ROLLER MILL CO. |
| Court | U.S. District Court — Eastern District of Kentucky |
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R. B Byass & Company continued the manufacture of this terneplate at Port Talbot and its sale under the trade-mark 'M.F.' both in England and the United States until August 30, 1897, when they licensed the Elwood Tin Plate Company, of Elwood City, Ind., to use the secret process and the trade-mark upon terneplate made by that company according to the process. A plant for the manufacture was erected by the Elwood Tin Plate Company under the supervision of R. B Byass & Company, and workmen from their establishment skilled in the manufacture under the process were employed. R. B Byass & Company became stockholders in the Elwood Tin Plate Company and one of the firm a director. On January 1, 1900 the Elwood Tin Plate Company went out of business, surrendered its license to R. B. Byass & Company, and on January 4, 1900, transferred all its remaining assets, including the plant at Elwood City to the American Tin Plate Company, the complainant in this cause. In March, 1900, the complainant purchased from R. B. Byass & Company the secret process, the good will of the business of making terneplate under it, and the exclusive right to the trade-mark 'M.F.,' and thereafter employed the process in making terneplate at the Elwood City plant of the American Tin Plate Company, and marked the product so manufactured with the trade-mark. It was shown that the terneplate of the American Tin Plate Company was ordered, specified, and referred to by architects, dealers and users as 'M.F. terneplate' though the form in which these letters were used upon the product was always as a monogram inclosed in a circle. Defendant, Licking Roller Mill Company, was a Kentucky corporation with a rolling mill at Covington, Ky. Shortly before the institution of the suit it began the manufacture of terneplate, which it marked as
I.C. I.C. follows: M.F.H., M.F.H., and M.F.H. Defendant contended that it had
Extra Best acquired the right to use the letters 'M.F.H.' from a man named Murray F. Herman, of Dayton, Ky., whose initials they were. It appeared that there was a Martin Herman, who was a hardware dealer and cornice maker at Dayton, but who had never manufactured tin or terneplate. Complainant contended that his name was Martin Herman and not Martin F. Herman. It was shown that the sign over his place of business was 'Martin Herman,' that his name given in the city directories was Martin Herman, and that property was transferred by him under the name 'Martin Herman,' and that he was known as Martin Herman and not Martin F. Herman. Exceptions to the bill and a general demurrer filed by the defendant were overruled. The cause came on for hearing upon pleadings and proof. It was contended by defendant that it had acted in good faith, that it had a right to use the mark, and that, since the form in which complainant had used the trade-mark was the letters 'M.F.' as a monogram inclosed in a circle, the use by defendant of the letters 'M.F.H.' without the circle did not amount to an infringement.
Mackoy & Lowman (Frank F. Reed and Edward S. Rogers, of counsel), for complainant.
S. D. Rouse, for defendant.
Counsel for defendant emphasizes the fact that the design which the complainant and its predecessor in title have always used to mark the terneplate manufactured and sold by them has been the letters 'M.F.' in monogram inclosed within a circle; and that they have never used those letters for that purpose, except in that way. He draws the conclusion from this circumstance that complainant's trade-mark is those letters so disposed and accompanied, and not those letters differently disposed or accompanied. In other words, his position is that its trade-mark is to be determined by what has been used by complainant and its predecessor, and not by what they have claimed was the trade-mark, and, so determining it, it must be held that its trade-mark is those letters with such disposition and accompaniment, and not those letters without either. According to this view of the matter, the letters 'M.F.' not in monogram and without any accompaniment is not complainant's trade-mark.
It seems to be true that the mark which has always been used is as claimed, the letters in question in monogram within a circle. Those letters seem never to have been used upon the goods in marking them in any other way. At least there does not seem to be any evidence in this record of such use. It may also follow from this, that, strictly speaking, complainant's trade-mark is those letters in monogram within a circle, and not otherwise arranged or associated. But conceding all this to be true, what follows from the concession? It does not follow from this that in order for the trade-mark to be infringed it is necessary that the mark...
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