Batcheller v. Thomson

• Decision Date: 04 April 1899
• Docket Number: 92-94.
• Citation: 93 F. 660
• Court: U.S. Court of Appeals — Second Circuit
• Parties: BATCHELLER v. THOMSON (two cases). THOMSON v. BATCHELLER.

93 F. 660

BATCHELLER v. THOMSON (two cases).

THOMSON v. BATCHELLER.

Nos. 92-94.

United States Court of Appeals, Second Circuit.

April 4, 1899

Hamilton Wallis, for appellant.

S. D Cozzens, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

On January 1, 1865, the firm of W. S. Thomson, Langdon & Co. was established in the city of New York; the partners being William S. Thomson, Charles H. Langdon, and George C Batcheller. Thomson and Langdon had been partners for a number of years. Thomson's brother-in-law, William A Nettleton, was taken into the firm in 1866, and retired May 31, 1869. In June, 1869, the firm became Thomson, Langdon &amp Co., and continued under the same name until December 31, 1878, Thomson, Langdon, and Batcheller being partners, when Thomson sold his interest to Langdon, and the partnership was dissolved. Before 1865, W. S. Thomson went abroad, and thereafter continued to live in Paris or London, and with his brother, under the name of Thomson Freres, commenced to manufacture corsets in Paris in 1865, which were called 'Corsets Gangs.' The firm of W. S. & C. H. Thomson, consisting of four persons, commenced in England, in the latter part of 1866, the manufacture of corsets called 'Thomson's Glove-Fitting Corsets.' The French and the English firms were entirely distinct from the New York firm. The interests of the three other members of the English firm were subsequently purchased by W. S. Thomson. To these English corsets, offered for sale and sold in England during the early part of 1867, the trade-mark above mentioned was affixed by Thomson, and the articles so marked were vendible articles in the market. In May, 1867, Langdon went to Paris, and also to England, and during his absence saw these corsets, and wrote to his New York partners in reference to manufacturing them in this country, and thought that the business would be profitable, as 'we should make the name of the glove-fitting corset a specialty. ' Samples for examination were sent from the English factory to the New York firm, and in reply an order for 200 dozen was sent on June 18th; and thereafter a most extensive business sprang up, in the purchase from Thomson, and in the sale in the United States, of these imported corsets, which were manufactured in England, and there stamped by Thomson with his trade-mark. The purchases from Thomson continued until the erection by the New York firm, with his consent, of a factory in Bridgeport, Conn., in 1877, where the corsets which they sold in the United States were subsequently manufactured by the firm, and were stamped with the trade-mark.

The contested question of fact in the case was in regard to the priority of the use of the trade-mark; the complainant endeavoring to show that the name was invented by the New York firm, and was applied by it to the samples which came from London and were sold in New York before the actual use of the name upon goods sold in London. In view of the testimony derived from the written documents signed or known at the time of their date by all the parties, their conduct, and the previous declarations of Batcheller under oath, it is manifest that the origin of the trade-mark in London, before its use in this country, its continued application to the goods before their importation, and its individual ownership by Thomson, distinct from his interest in the New York firm, were known and acted upon by that firm constantly during the continuance of the partnership of Thomson, Langdon & Co. The oral testimony of the parties in regard to the order of events in 1866 and 1867 might leave the mind in uncertainty as to that order, but the written business papers in the execution or formation of which the three partners were brought together, and their conduct at the time of the dissolution, leave no doubt that Thomson's ownership of the trade-mark was, during the partnership, conceded.

Before Thomson's retirement from the firm, in December, 1878 three written agreements were executed, which, though not bearing the same date, were parts of the same transaction of sale to Langdon, and dissolution of partnership. By an agreement of October 31, 1878, between Thomson and Langdon, the former sold to the latter all his interest in the Lyman patent, which will be hereafter mentioned, and also assigned to Langdon 'all the interest and claims of said Thomson in and to any and all trade-marks, of any description whatever, heretofore used by said Thomson, Langdon & Co. in the United States, with the full privilege and liberty to use the same during his lifetime in such manner as said Langdon may deem best. ' He also had the right to use the business signature of Thomson, Langdon & Co. as long as he was personally engaged in the business then carried on by that firm. The second agreement between the same parties refers to a sale to Langdon by Thomson of all his interest in the assets and property of the firm. In a third agreement between the three partners, London & Batcheller agree that so long as the new firm of which they two shall be partners shall continue to use the designation of Thomson, Langdon & Co., or stamp the name of Thomson upon their goods, the new firm 'will entirely abstain from selling any goods manufactured by them, which the London house of W. S. Thomson & Co. now make,' to or for the markets of Canada or Great Britain. On October 29, 1883, Thomson and Langdon had an interview in New York, in which Thomson sharply charged...