Arrow Distilleries v. Arrow Distilleries

• Decision Date: 18 June 1942
• Docket Number: No. 7916-7918.,7916-7918.
• Citation: 128 F.2d 841
• Parties: ARROW DISTILLERIES, Inc., (MICHIGAN) v. ARROW DISTILLERIES, Inc. (ILLINOIS) (two cases).
• Court: U.S. Court of Appeals — Seventh Circuit

128 F.2d 841 (1942)

ARROW DISTILLERIES, Inc., (MICHIGAN) v. ARROW DISTILLERIES, Inc. (ILLINOIS) (two cases).

Nos. 7916-7918.

Circuit Court of Appeals, Seventh Circuit.

June 18, 1942.

Ralph M. Snyder, of Chicago, Ill., and Eugene D. McLaughlin, of Peoria, Ill., for appellant.

John L. McInerney, Louis M. Mantynband, and Sidney R. Zatz, all of Chicago, Ill., for appellee.

Before SPARKS, KERNER, and MINTON, Circuit Judges.

SPARKS, Circuit Judge.

These appeals involve the alleged failure of the District Court to comply with the mandate of this court issued on April 15, 1941, pursuant to this court's opinion in the same case, 117 F.2d 636. The pertinent facts in this case are set forth in that opinion.

Briefly, plaintiff, a Michigan corporation, had charged defendant, an Illinois corporation, with unfair competition in the appropriation of the former's corporate name and trademark, and sought injunctive relief and an accounting and damages for sales in all states except Illinois. Plaintiff did not allege infringement of a federally registered trademark, but stated that it had registered the word "Arrow" as a mark of its products in every State of the United States where liquor could legally be sold, except Illinois, Indiana and Kentucky. Defendant answered in denial and asserted a counterclaim based upon its alleged right to commit the acts complained of, and it asked for an accounting and profits. The matter was referred to a master upon only the issue of unfair competition, and it was stipulated that he should not inquire into the accounting until he had reported to the court his findings on the other issues.

The master's report contained special findings of fact, and also his conclusions of law thereon, favorable to plaintiff. The District Court on the same evidence rendered findings of fact and conclusions of law favorable to the defendant. Up to this time the question of damages had not been inquired into. We reversed because we thought the master's findings of facts were supported by substantial evidence and that the law was with the plaintiff.

Upon remand, the District Court entered its order enjoining defendant, except as to the area of Illinois, from the unfair practices of which the master's report had found it guilty. The decree further provided that the plaintiff "recover of the defendant * * * the profits * * * which said defendant has derived by reason of its sale of liqueurs and cordials under the brand name `Arrow' except * * * (as to those sold in the State of Illinois.)" The decree, as subsequently amended, further ordered a reference to a special master who was thereby clothed with the usual powers to ascertain and state the profits derived by the defendant from the sales of liqueurs and cordials under the brand name "Arrow" through the acts of unfair competition in trade, and he was thereby empowered to assess the damages, exemplary as well as compensatory, suffered by the plaintiff, and to report thereon to the court.

Both parties have appealed from that decree. The plaintiff asserts as error the action of the District Court in excepting from the injunction the area of Illinois, and in limiting the award of profits to cordials and liqueurs sold by defendant under the name "Arrow" in states other than Illinois, and in failing to award to it an accounting of profits made by defendant in the sale of spirits, alcohol, whiskeys, gin, cordials, brandies and liqueurs under the name "Arrow," "Tom and Jerry" or "Arrow Distilleries, Inc." Defendant asserts as error the action of the court in awarding any damages or accounting and, in particular, the authorization of exemplary damages.

It is clear that the order complained of is not a final one from which an appeal will lie. Cf. Latta v. Kilbourn, 150 U.S....