Hygrade Food Products Corp. v. HD Lee Mercantile Co., No. 1280.

CourtNew York District Court
Writing for the CourtPOLLOCK
Citation37 F.2d 900
Docket NumberNo. 1280.
Decision Date05 February 1930
PartiesHYGRADE FOOD PRODUCTS CORPORATION v. H. D. LEE MERCANTILE CO. et al.

37 F.2d 900 (1930)

HYGRADE FOOD PRODUCTS CORPORATION
v.
H. D. LEE MERCANTILE CO. et al.

No. 1280.

District Court, S. D. Kansas, First Division.

February 5, 1930.


Dean & Dean, of Topeka, Kan. (Harold H. Corbin and Edward J. Bennett, both of New York City, of counsel), for plaintiff.

Thomas M. Lillard, of Topeka, Kan., and Edwin C. Meservey and Charles M. Blackmar, both of Kansas City, Mo., for defendants.

POLLOCK, District Judge.

This suit was brought by plaintiff, a corporate citizen of the state of New York, against defendants, citizens of this state and the state of Missouri, to restrain defendants from unfair competition in business with plaintiff.

True, the plaintiff has a registered trade-mark as has defendant the mercantile company. But, as plaintiff's trade-mark as registered consists of a descriptive term, it is quite well settled plaintiff cannot by such means obtain a right to the exclusive use or a monopoly of the term because of the fact it is registered as a trade-mark. See Del. & H. Canal Co. v. Clark, 13 Wall. 311, 20 L. Ed. 581; Federal Trade Commission v. Klesner, 58 App. D. C. 100, 25 F.(2d) 524; and many other cases. And as this case is made by plaintiff's pleading, it is not understood any such claim is made by plaintiff. On the contrary, plaintiff concedes it cannot have or claim this from the fact merely of a registered trade-mark. What the plaintiff does claim is that, by its use of the phrase "Hygrade Food Products," it has so built up the standard of its products by advertisements, by the doing of a very large and extensive business, the selling and dealing in food products, that, when another offers food products as "High Grade Food Products," either so named or when the place of business

37 F.2d 901
of another is named as "High Grade Food Store," as defendants in this case do so advertise and name their places of business, those who enter such store or make purchases therein or therefrom are deceived in the belief they are there obtaining the goods handled by the plaintiff company. In other words, merely by so conducting their business, the defendants are guilty of unfair competition in business with plaintiff. The bill of complaint in this case does not claim defendants have simulated the registered trade-mark of plaintiff. There is no claim defendants have dressed their goods in cartons, packages, boxes, or other wrappings similar to those used by plaintiff. The sole and only charge or complaint in the bill resides in the simple fact that defendants deceive dealers and...

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2 practice notes
  • Plough, Inc. v. Intercity Oil Co., No. 7581.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • February 17, 1939
    ...Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. ___, 39 U.S.P.Q. 296; Hygrade Food Products Corp. v. H. D. Lee Mercantile Co., D.C., 37 F.2d 900. The Commissioner of Patents has granted registration of the words "ever ready" in many forms and for numerous commodities, and the ap......
  • American Fence Co. of the Midwest, Inc. v. Gestes, No. 42820
    • United States
    • United States State Supreme Court of Kansas
    • November 3, 1962
    ...American Automobile Ins. Co. v. American Auto Club, 9 Cir., 184 F.2d 407; Hygrade Food Products Corp. v. H. D. Lee Mercantile Co., D.C., 37 F.2d 900; Friedman v. Sealy, Incorporated, 10 Cir., 274 F.2d 255; Belvidere Land Co. v. Owen Park Plaza [1960], 362 Mich. 107, 106 N.W.2d 380; American......
2 cases
  • Plough, Inc. v. Intercity Oil Co., No. 7581.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • February 17, 1939
    ...Biscuit Co., 305 U.S. 111, 59 S.Ct. 109, 83 L.Ed. ___, 39 U.S.P.Q. 296; Hygrade Food Products Corp. v. H. D. Lee Mercantile Co., D.C., 37 F.2d 900. The Commissioner of Patents has granted registration of the words "ever ready" in many forms and for numerous commodities, and the ap......
  • American Fence Co. of the Midwest, Inc. v. Gestes, No. 42820
    • United States
    • United States State Supreme Court of Kansas
    • November 3, 1962
    ...American Automobile Ins. Co. v. American Auto Club, 9 Cir., 184 F.2d 407; Hygrade Food Products Corp. v. H. D. Lee Mercantile Co., D.C., 37 F.2d 900; Friedman v. Sealy, Incorporated, 10 Cir., 274 F.2d 255; Belvidere Land Co. v. Owen Park Plaza [1960], 362 Mich. 107, 106 N.W.2d 380; American......

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