EXAKTA CAMERA COMPANY OF AMERICA v. Camera Specialty Co.

• Decision Date: 28 March 1957
• Citation: 154 F. Supp. 158
• Parties: The EXAKTA CAMERA COMPANY OF AMERICA, Incorporated, Plaintiff, v. CAMERA SPECIALTY COMPANY, Incorporated, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

154 F. Supp. 158

The EXAKTA CAMERA COMPANY OF AMERICA, Incorporated, Plaintiff, v. CAMERA SPECIALTY COMPANY, Incorporated, et al., Defendants.

United States District Court S. D. New York.

March 28, 1957.

James J. McDermott, New York City, Frank E. Scrivener, Washington, D. C., Charles K. Davies, Jr., Gaithersburg, Md., William D. Payne, Washington, D. C., of counsel, for plaintiff.

Holland, Armstrong, Bower & Carlson, New York City, Joseph P. Previto, New York City, of counsel, for defendants Camera Specialty Co., Inc., Max Wirgin, Wolfe Wirgin, Henry Wirgin, Exakta Camera Co.

DIMOCK, District Judge.

Plaintiff, claiming to be the owner of U. S. Trademark Registrations Nos. 314,049 and 354,241 for the trademarks Exakta and Kine Exakta respectively, brings this action for infringement. Defendants concede that they are using these trademarks in the sale of cameras. They nevertheless make this motion for summary judgment on the ground that there is no genuine issue of fact as to plaintiff's lack of title.

The relevant facts are very simple. A partnership, known as Ihagee Kamerawerk Steenbergen & Co., of Dresden, Germany, prior to October 8, 1941, conducted a camera business and owned the trademark registrations in suit. There were six partners, five of whom were German nationals and one a Dutch national. During World War II, the Dutch national, who was the dominating factor in the partnership, was interned. In order to limit liability for losses which it was anticipated would result from his absence from management, all six partners formed a corporation, Ihagee Kamerawerk Aktiengesellschaft of Dresden, Germany. To this corporation all six partners assigned all of the partnership's assets except buildings, machinery and equipment. The excepted assets were leased to the corporation. The assigned assets specifically included the trademark registrations here involved. In return for the assignment the partners and the partnership received all of the corporation's capital stock, some shares being issued to each partner and some to the partnership as such. The partnership never thereafter manufactured or sold any cameras or made use of the trademarks.

Such of the German members of the partnership as are still alive are residents of East Germany. The Dutch member is a resident of West Germany. On October 28, 1952, while resident there, he executed, individually and "as principal owner of the partnership Ihagee Kamerawerk Steenbergen & Co., Dresden, Germany," a power of attorney to Charles K. Davis, Jr., of Gaithersburg, Maryland, authorizing him "to perform any act in connection with a claim based upon the trademarks Exakta and Kine Exakta against any person, firm or corporation including but not limited to, negotiating agreements, executing assignments, or licenses, bringing suit, making compromise arrangements, receiving moneys * * * and including any act or action incident thereto."

On January 15, 1953, Mr. Davis, as attorney-in-fact for the partnership Ihagee Kamerawerk Steenbergen & Co. of Dresden, Germany, purported to assign to plaintiff herein the trademark registrations here involved "together with the good will of the business with...