Hughes v. Alfred H. Smith Co.
| Decision Date | 11 November 1913 |
| Docket Number | 94. |
| Citation | 209 F. 37 |
| Parties | HUGHES et al. v. ALFRED H. SMITH CO. ALFRED H. SMITH CO. v. HUGHES et al. |
| Court | U.S. Court of Appeals — Second Circuit |
J. L Stewart, Sidney R. Perry, and Francis X. Brosnan, all of New York City, for appellant.
Otto Horwitz, of New York City, Frank C. Curtis, of Troy, N.Y and W. J. Rosenstein, of New York City, for appellee.
Before LACOMBE, COXE, and WARD, Circuit Judges.
Judge Ray has exhaustively narrated the facts upon which both sides rely; reference may be had to his opinion for the details of the transaction. In this opinion, unless otherwise indicated the word 'Pearson' will be used as including the original Pearson and his successors and the word 'Hughes' will be used as including complainant's predecessors in business.
On December 21, 1886, Pearson obtained United States Letters Patent, No. 345, 583, for a single bristle rubber cushion 'hair or other brush.' He had already taken out an English patent for the same device, so that his American patent expired, probably, in 1899. He at once began the manufacture and sale of hairbrushes made in conformity to the patent, in England, under the name 'Very.' In 1888 one Reid and some other of Hughes' predecessors undertook the selling of like brushes in this country. Reid had talked with Pearson about the matter and an arrangement was entered into whereby Pearson was to sell his brushes, in the United States, solely to Reid and his associates. It was decided that the brushes sold here should be called 'Ideal' and it is a controverted question of fact, who selected that name. Complainant's evidence tends to show that it was one of his predecessors. The widow of the original Pearson testified that her husband suggested it to Reid. We do not find her recollection of a conversation listened to many years before she testified especially persuasive; it appears that, whoever suggested the word, it was adopted by Reid and his associates and the first die for stamping on the handle was made here and sent to Pearson. Subsequently another die-- containing the word 'England,' in compliance with Custom House requirements-- was made in England. Hughes' predecessors apparently were not the mere consignees or agents of Pearson; they bought the brushes outright and resold them here as a business of their own and they had exclusive license for sale of the same in this country. Without rehearsing the evidence we concur with Judge Ray that the word 'Ideal' was used and understood in this country as indicating brushes sold by Hughes and his predecessors, not as brushes made exclusively by Pearson. Application for a registered trade-mark, therefore accompanied by declaration that it had been used ten years in his business, was properly made by Hughes.
We are satisfied that the word 'Ideal' so applied to a brush is not descriptive and therefore was entitled to registration as...
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