Hecker HO Co. v. Holland Food Corporation
| Decision Date | 09 December 1929 |
| Docket Number | No. 95.,95. |
| Citation | 36 F.2d 767 |
| Parties | HECKER H-O CO., Inc., v. HOLLAND FOOD CORPORATION. |
| Court | U.S. Court of Appeals — Second Circuit |
Hunt, Hill & Betts, of New York City (John W. Crandall, of New York City, of counsel), for appellant.
W. Lee Helms, of New York City, for appellee.
Before MANTON, L. HAND, and MACK, Circuit Judges.
Appellant and appellee manufacture cereal products. The appellee manufactures and sells in both domestic and foreign commerce, and, while the appellant manufactures its cereal products in this country, it sells only in foreign commerce. The appellee's mark is "H-O." The appellant uses the mark "HOFOOD." The mark H-O had been used by the appellee and its predecessors since 1887, and the trade-mark was registered on May 13, 1919.
In 1921, the appellant obtained a registered trade-mark for "HOFOOD" as applied to cereal products, and in 1922 filed an application for registration of the same mark for other cereal products. Thereupon the appellee filed proceedings in the United States Patent Office, praying that the appellant's registered mark be canceled, and that the applied-for mark be denied registration, because of the priority of use of substantially the same mark, to wit, "H-O" of the appellee, in connection with the word "food." The Court of Appeals of the District of Columbia affirmed the vacation of the appellant's trade-mark, and it was denied registration. Holland Food Corp. v. H-O Cereal Co., 56 App. D. C. 189, 11 F.(2d) 575.
The appellant purchases cereal products, including rolled oats, semolina flour, and cattle food, from manufacturers in the United States, and packages them in boxes and barrels, and applies to such containers the word "HOFOOD." These are shipped from American ports to foreign countries, including England, Holland, Belgium, Switzerland, and Greece.
The injunction granted below directed that the appellant be permanently enjoined from marketing or selling cereal foodstuffs under the name "HOFOOD," and further from affixing the mark "HOFOOD" on containers for cereal foodstuffs, and from otherwise infringing the trade-mark rights of the appellee in and to the trade mark "H-O." The appellant contends that it cannot be enjoined from the sale of its product bearing the infringing trade-mark in the respective foreign countries referred to. The Trade-Mark Act of February 20, 1905 (33 Stat. 724, 728) § 16 (15 USCA § 96), provides:
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