Brooks v. Great Atlantic & Pacific Tea Co.
| Decision Date | 10 November 1937 |
| Docket Number | No. 8349.,8349. |
| Parties | BROOKS v. GREAT ATLANTIC & PACIFIC TEA CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William E. Prather, of Los Angeles, Cal., for appellant.
Kelly L. Taulbee, of Los Angeles, Cal. (Munn, Anderson & Liddy, of New York City, of counsel), for appellee.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
This is an appeal from an interlocutory decree of the District Court restraining defendant from the use of a copyrighted trade-name upon the grounds of trade-mark infringement and unfair trade. The decree orders an accounting.
The plaintiff (appellee), the Great Atlantic & Pacific Tea Company, a corporate citizen of New Jersey with principal place of business in New York, brought this action in the United States District Court, Southern District of California, Central Division, (defendant residing therein) alleging in its bill of complaint that its trademark "Eight O'Clock" and "8 O'Clock" as a brand of coffee was being infringed by the defendant (appellant), Will Brooks, individually and trading as Brooks & Co., and claiming that defendant was practicing unfair competition in the use of "8 Bells" as a sales brand of coffee. The defendant answered admitting and denying certain of the allegations contained in the bill and the case was tried and submitted to the court upon the pleadings and two written stipulations of fact. The court found in favor of plaintiff and entered its interlocutory decree ordering an accounting and enjoining the use of the designation "8 Bells" by defendant both on the ground of trade-mark infringement and unfair competition. The sum of money involved amounts to many times the sum of $3,000. Thus, the jurisdiction of the court to entertain both phases of the complaint is established.
The defendant's first and most stressed point upon the appeal is that the court by unduly pressing its authority and position upon the attorney for defendant required his stipulation of the facts and required his submitting the case for decision upon such stipulation of facts. (It should be noted that defendant is not represented here by his trial attorney, who never has made any complaint as to the court's conduct.)
The court's calendar was badly congested, and plaintiff, desiring an early adjudication, requested a hearing before a special master, but defendant objected. The court then made its order from which we quote: "Whereupon the court orders that setting of this cause for trial be continued two weeks; counsel to file proposed agreed statement of facts."
The parties eventually agreed to the facts in two signed written statements, defendant reserving his exception to the court's ruling that certain facts contained in the statement were relevant. No objection was ever made or exception ever taken to the order quoted from.
Thereafter attorneys for both parties appeared in open court and orally submitted the case upon the record including the agreed statements of fact and written briefs. In due time the court decided that defendant's label was deceptively similar to plaintiff's trade-mark and that defendant had practiced unfair competition by using it. (Note that no attack has been made upon the legal status of defendant's claimed trade-marks.) Findings of fact and conclusions of law were approved as to form (purporting correctness under District Court Rule 44); they were duly signed and filed, the interlocutory decree was entered, and defendant filed his petition for appeal. Thereafter the original order continuing the case and providing for stipulation of facts was changed by the court to more fully and formally cover these subjects.
The true dignity and power of a federal judge, and that of an attorney in his court, are equal within the sphere of their respective duties. The judge must not compel agreement by arbitrary use of his power and the attorney must not meekly submit to a judge's suggestion, though it be strongly urged.
However, the record in this case shows only a commendable course of co-operation, by and between the judge and attorneys, to save time in an overbusy court. Time after time attorneys for both sides signed papers entirely consistent with the trial of the case through stipulation of fact. In these circumstances objection for the first time upon appeal, through the medium of a different attorney, cannot be approved.
Defendant contends that no proof was had as to willfulness or as to any fraudulent intent of any act of which plaintiff complained. From a careful reading of the record it is disclosed that practically all matters alleged in the complaint were either admitted in the answer (admissions in the answer have the force of evidence; see Patterson v. Gaines (1858) 6 How. (47 U. S.) 550, 12 L.Ed. 553) or stipulated to by the defendant. However, neither willfulness nor fraudulent intent is necessary to the relief herein sought. (See authorities cited, infra.)
It is stated in the stipulation of facts that plaintiff has brought a number of actions in the courts against other alleged violators of plaintiff's trade-mark and that in each and every case the matter has been settled favorably to plaintiff's contentions without any consideration whatever passing. Defendant stipulated as to the truth of this fact but objected to its relevancy. The stipulation included the statement that such evidence was to be received solely to prove that plaintiff had been diligent in protecting his rights under his trade-mark. The relevancy of such evidence for this limited purpose is apparent.
Defendant next complains that there was no evidence either of infringement or of any unfair competition, but we think otherwise.
The evidence in this case is wholly by admissions in the answer and by written stipulation. It is without conflict and, by concession of the parties, establishes the following facts.
The plaintiff is the successor in interest and good will of a long established food selling business which began the use of the trade-mark "Eight O'Clock" and "8 O'Clock" to identify and distinguish its coffee from others in the market about the year 1869. It had not been so used before and it has been so used continuously since such date. Such trade-mark was registered in the U. S. Patent Office, December 23, 1890, and reregistered in slightly different form but retaining the words "Eight O'Clock" or "8 O'Clock" on June 14, 1927, July 23, 1929, April 25, 1933, and January 16, 1934.
Exclusive ownership by plaintiff and its...
To continue reading
Request your trial
-
Time, Inc. v. TIME INC.
...Auto Club, 9 Cir., 1950, 184 F.2d 407; Lane Bryant, Inc. v. Maternity Lane, 9 Cir., 1949, 173 F.2d 559; Brooks v. Great Atlantic & Pacific Tea Co., 9 Cir., 1937, 92 F.2d 794; Hotels Statler Co. v. Chase, D.C.S.D.Cal.1952, 104 F.Supp. 533, 537; Morse-Starrett Products Co v. Steccone, D.C.N.D......
-
Peskin v. Peskin
...his power and the attorney must not meekly submit to a judge's suggestion, though it be strongly urged." Brooks v. Great Atlantic & Pacific Tea Co., 92 F.2d 794, 796 (9th Cir.1937). * * * * * * Although we commend ... [the trial judge] for his efforts to encourage settlement negotiations, h......
-
Joyce, Inc. v. Fern Shoe Co.
...1935, 78 F.2d 763, 101 A. L.R. 484; Enders Razor Company v. Christy Company, 6 Cir., 1936, 85 F.2d 195; Brooks v. Great Atlantic & Pacific Tea Company, 9 Cir., 1937, 92 F.2d 794; Armstrong Paint & Varnish Works v. NuEnamel Corp., 1938, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. The master found t......
-
McGraw-Hill Pub. Co. v. American Aviation Associates, 7615.
...648, 58 L.Ed. 1046, Ann.Cas.1915B, 322; S. S. Kresge Co. v. Winget Kickernick Co., 8 Cir., 96 F.2d 978, 986-988; Brooks v. Great Atlantic & Pacific Tea Co., 9 Cir., 92 F.2d 794. 3 Nims, Unfair Competition and Trade-Marks (3rd ed. 1929) § 324. Compare New Metropolitan Fiction, Inc., v. Dell ......