Eiseman v. Schiffer
| Decision Date | 28 August 1907 |
| Parties | EISEMAN et al. v. SCHIFFER et al. |
| Court | U.S. District Court — Southern District of New York |
Cooke & Forsch and Archibald Cox, for defendants.
There is no diversity of citizenship, and jurisdiction is based solely on the fact that the trade-mark is registered under the federal trade-mark act of February 20, 1905, c. 592, 33 Stat. 724 (U.S. Comp. St. Supp. 1907, p. 1008). Application was filed May 1, 1905, and the trade-mark (No. 45,759) was registered August 29, 1905. It is stated in the declaration that the class of merchandise to which the trade-mark is appropriated is dry goods, and that the particular description of goods upon which the trade-mark is used is 'silk dress goods in the piece. ' The record shows that the Gilbert Company was the first person in this country to use the word 'radium' as a distinct mark of any kind of silk goods in the piece. Prior to application they had affixed it to goods made entirely of silk, sold only in the piece, of the class generally known as 'taffetas,' but with a special soft finish so that it might be appropriate for use as a lining (for which ordinary taffeta was mainly used) and also for outer garments. These circumstances, actual use, and priority over others entitled them to registration of the trade-mark for 'silk dress goods in the piece. ' If a silk fabric is of such a character as to be appropriate for use in making dresses it would seem to be 'dress goods,' even though persons who are able to afford such luxuries purchase fabrics still softer, more lustrous, and heavier for the outer garment, and use the improved taffeta for a lining. The fabrics whose further sale it is sought to enjoin are heavier, softer, and more lustrous than the silk dress goods which the Gilbert Company was selling at the date of registration, and a great deal of testimony has been taken as to the character, finish, prices, and uses of silk fabrics. But it would seem that the circumstance that defendants sell a better grade of 'silk dress goods in the piece' should not justify them in doing so under a trade-mark which another person has already secured as distinctive of his 'silk dress goods in the piece. ' The testimony indicates that defendants did not make use of the word 'radium' with any intention to capture the Gilbert Company's trade; they and others who also used it did so, some of them at least, in ignorance of the Gilbert Company's use. The word came into use in Paris in connection with peculiarly lustrous fabrics, and was taken up by many persons here for use in the same connection. But that circumstance is immaterial, because the evidence shows that the word was first used here by the Gilbert Company, and had been registered by it (under the earlier act of March 3 1881, c. 138, 21 Stat. 502 (U.S. Comp. St. 1901, p. 3401)) long before any one else used it in this country. Every manufacturer and dealer must be held to be informed as to the registration-- that is what registration acts are for-- and in the case of a technical trademark, mark, which this is intent is immaterial. The contention that the word 'radium' is descriptive of the silk fabric and therefore not a proper trade-mark is without merit. The conclusion is reached that at the time of the assignment to Eiseman & Co. the Gilbert Company owned a valid trade-mark applicable to silk dress goods in the piece, and that the sale of fabrics such as here complained of would be an infringement of the rights of the owner of such trade-mark.
On November 23, 1905, the Gilbert Company and Eiseman & Co. signed a written agreement by the terms of which, in consideration of certain...
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