Burt v. Tucker

Citation178 Mass. 493,59 N.E. 1111
PartiesBURT et al. v. TUCKER.
Decision Date04 April 1901
CourtUnited States State Supreme Judicial Court of Massachusetts

178 Mass. 493
59 N.E. 1111

BURT et al.
v.
TUCKER.

Supreme Judicial Court of Massachusetts, Suffolk.

April 4, 1901.


Appeal from superior court, Suffolk county.

Bill by one Burt and others against one Tucker. From a decree in favor of the defendant, the plaintiffs appeal. Affirmed.


Norman [178 Mass. 499]F. Hesseltine, for appellants.

S. L. Whipple and C. F. Bean, for appellee.


HOLMES, C. J.

This is a bill to restrain the infringement of an alleged trade-mark consisting of the word ‘Knickerbocker,’ as applied to boots and shoes. In the answer a prior use and acquisition of the trade-mark by the defendant is set up. The case is here on the evidence, by appeal from a decree of

[59 N.E. 1112]

the Superior Court dismissing the bill, after a finding that the facts were as alleged in the answer.

In considering whether the defence is made out, of course we shall assmue in favor of the finding that the defendant was an honest witness, as he had every appearance of being, so far as the printed answers go. It was admitted in the argument before us that the defendant was the first to use the word. It would have to be admitted also that when he resumed the use he did so in ignorance of what the plaintiffs had done in the meantime, so that in its dramatic aspect the case for the defendant is pretty strong. The plaintiffs, however, deny that the defendant ever did more than to use the word as an advertising device, and insist that if he did get a trade-mark it was abandoned as matter of fact and of law, and further that the defendant now is making [178 Mass. 500]a use of the word not within the scope of any right which he may have acquired.

We assume in favor of the plaintiffs that they might be entitled to prevail notwithstanding the fact that the defendant first used the word in its present connection, and that the right to a trade-mark does not depend upon originality, even as against the originator of the characteristic use. Menendez v. Holt, 128 U. S. 514, 521, 9 Sup. Ct. 143, 32 L. Ed. 526;Banking-Powder Co. v. Raymond (C. C.) 70 Fed. 376. We therefore assume that the points toward which the plaintiffs have directed their argument are the points necessary to be considered, and that what we have called the dramatic aspect of the facts is not conclusive of the equities upon which the decision of the case must turn.

In the first place then it is to be considered whether the defendant ever had a trademark. Upon this question the finding of the Superior Court seems to us fully...

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