Local Trademarks, Inc. v. Grantham

• Decision Date: 31 December 1957
• Docket Number: No. 157.,157.
• Citation: 166 F. Supp. 494
• Parties: LOCAL TRADEMARKS, INC., a corporation, Plaintiff, v. Milton V. GRANTHAM, doing business as Chadron Floral Shop and The Floral Nook, Defendant.
• Court: U.S. District Court — District of Nebraska

166 F. Supp. 494

LOCAL TRADEMARKS, INC., a corporation, Plaintiff, v. Milton V. GRANTHAM, doing business as Chadron Floral Shop and The Floral Nook, Defendant.

No. 157.

United States District Court D. Nebraska.

December 31, 1957.

George H. Thompson and Robert H. Peterson, Omaha, Neb., for plaintiff.

Charles A. Fisher, Chadron, Neb., for defendant.

DELEHANT, District Judge (Retired, serving by assignment).

Relying for jurisdiction upon Title 17 U.S.C. § 112 and Title 28 U.S.C. § 1338, plaintiff brought this action, as the alleged owner of a United States copyright, to obtain as against defendant, on account of alleged infringement, a judgment for injunction and other equitable relief, damages, costs and counsel fee. The complaint is in six counts, each of which alleges against the defendant a separate act constituting an asserted infringement of plaintiff's copyright. To that extent the several counts are separate and distinct. But in other respects the allegations of all of the counts are essentially the same.

In all counts of the complaint it is alleged that plaintiff is a New York corporation, engaged in the business of promotion by means of selling to people engaged in various businesses, cuts, mats and reading matter used for the purpose of inserting advertisements in newspapers and periodicals; and that defendant, an individual, is engaged in business as a retail florist under the trade name of "Chadron Floral Shop" in Chadron, in Dawes County, Nebraska, and separately under the trade name of "The Floral Nook" in Alliance, in Box Butte County, Nebraska, and has his place of residence in Chadron. Then, step by step, each count alleges (a) plaintiff's composition, writing and origination of a book or pamphlet containing cuts and reading matter to which was attributed the title "Miss Flora Series," and plaintiff's conception, invention and ownership of such book or pamphlet; (b) the inclusion in such book or pamphlet of a series of cuts or prints containing figures designed to attract public attention through insertion in advertisements inviting consideration of merchandise for sale by advertisers; (c) plaintiff's procurement of a copyright, under Title 17 U.S.C. § 1 et seq. covering such "Miss Flora Series"; (d) its registration of its copyright of the "Miss Flora Series," and each portion thereof, and especially that portion thereof identified as "Volume 10," of which "Miss Flora Series" Volume 10, a copy is annexed to the complaint; and (e) the status at all times material of Alliance Neb. Daily Times Herald as a newspaper published in Alliance, Nebraska, with a circulation of 3,447 copies. Beyond these allegations common to all of the counts, each count separately alleges that defendant, with full knowledge of plaintiff's rights and of the foregoing copyright, did on a date specified in the count publish and cause to be published in the newspaper just identified an advertisement (each of which differs from each and all of the others), which was taken and copied from a portion of plaintiff's copyrighted pamphlet "Miss Flora Series" Volume 10, of each of which advertisements so published a copy is attached to the complaint, and threatened to continue such publication, and others also taken from the copyrighted pamphlet in the newspaper herein mentioned, and in other newspapers; that such publication was and is without the consent, or authority of, and after warning against such publication by, the plaintiff and caused, and threatened to continue to cause, great injury and damage to plaintiff irreparable in character and not adequately compensable.

Count I alleges the publication on September 13, 1951 of an advertisement copied as Exhibit "C". Count II alleges the publication on September 20, 1951 of an advertisement copied as Exhibit "D". Count III alleges the publication on September 27, 1951 of an advertisement copied as Exhibit "E". Count IV alleges the publication on October 4, 1951 of an advertisement copied as Exhibit "F". Count V alleges the publication on October 11, 1951 of an advertisement copied as Exhibit "G". And Count VI alleges the publication on October 18, 1951 of an advertisement copied as Exhibit "H". Each of those exhibits is a separate and distinct advertisement directing attention to, and designed to support, the business of The Flower Nook, which, was located in Alliance, Nebraska, not in Chadron, from which Alliance is distant about fifty-nine miles. As indicated above, the two cities are located in different counties.

By way of answer defendant, first, denied every allegation of the complaint; secondly, alleged:

"that the defendant Milton V. Grantham entered into an oral agreement with the Plaintiff for the publication of certain advertising in Alliance and Chadron, Nebraska, and paid the Plaintiff and its agent for the same. That the damages now claimed by the Plaintiff is for said publication that have been paid for by the Defendant.";

thirdly, alleged his return to plaintiff at its request long before the institution of suit of all of the cuts and mats of the "Miss Flora Series, Vol. 10", and his want of possession or control of any of such cuts or mats; and fourthly, denied specifically that plaintiff sustained any damage or was entitled to any relief on account of any matter set out in its complaint.

The issues having thus been formulated, the court ordered, and there was held, a pretrial conference, of which a report was timely prepared by the judge, served upon counsel, and filed. Notwithstanding the report's express allowance of the right to except to its accuracy, no such exception was taken. Among the engagements made during the conference were three which are fairly reflected in the following language taken from Section III of the report:

"(a) Upon request, counsel for the defendant agreed that on the trial the publication of the six advertisements by the defendant, as alleged in the complaint, will be admitted without proof.

"(b) It was stipulated and agreed that the plaintiff's alleged copyright was duly issued and at all material times the plaintiff was and is the owner thereof.

"(c) It was agreed that upon the trial the original express receipt showing the shipment and delivery of the mats for printing copies of the advertising alleged in the complaint will be received without objection or foundation."

The express receipt just mentioned is, and even before the holding of the pretrial conference had been, incorporated as an exhibit in a deposition of William P. Schweickert, vice-president of plaintiff, who identified the mats for printing copies as being included in the material shipped to defendant under such receipt.

After the taking of Schweickert's deposition, and the holding of the pretrial conference, the parties entered into a written stipulation, of which, with the omission of the caption and signatures, the following is a copy:

"It is hereby stipulated and agreed that the following exhibits number 1 through 10, and consisting of No. 1, original contract, No. 2, letter from plaintiff to Chadron Floral Shop, dated July 24th, 1951, No. 3, letter from plaintiff to Chadron Floral Shop, dated September 12th, 1951, No. 4, Letter from Defendant to plaintiff dated September 21st, 1951, No. 5, copy of letter from plaintiff to Chadron Floral Shop, dated September 27th, 1951, No. 6, copy of letter from plaintiff to Chadron Floral Shop, dated October 10th, 1951, No. 7, letter from Milton V. Grantham to plaintiff, dated October 20th, 1951, No. 8, Letter from Louis Filedman, counsel for plaintiff to defendant, dated December 3, 1951, No. 9, copy of letter from defendant to plaintiff, dated December 10th, 1951, No. 10, letter from Gantz & Williams, attorneys at Alliance, Nebraska, to the plaintiff, shall be admitted in evidence wihtout foundation.

"It is further stipulated and agreed, that the deposition of defendant Milton V. Grantham, may be taken on written interrogatories, and that the case may then be submitted to the court without, argument, on the pleadings the exhibits attached hereto Nos. 1 to 10, and the depositions."

The exhibits mentioned, supra were duly attached to the stipulation.

Some delay having ensued in the taking of defendant's deposition in accordance with the stipulation, plaintiff served and filed a motion for orders (a) limiting the time within which such deposition might be taken, and (b) directing that the court "decide the issues based upon the pleadings and the evidence now before him and to enter a judgment as prayed for in plaintiff's petition." The court promptly declined summarily to enter the orders thus prayed for, but did enter an order requiring defendant to show cause by a specified date:

"why the court should not enter an order limiting the time within which defendant may take the deposition of defendant Milton V. Grantham by written interrogatories, as stipulated by the parties on January 21, 1957, and a further order directing that the issues in this case be forthwith decided upon the pleadings and the evidence now before the court, inclusive of such depositions if they be taken timely."

But even before the order last mentioned was made, the defendant's deposition had been taken; and a transcript of it was filed under even date with the order. Shortly thereafter, defendants' counsel, replying to a letter of inquiry to him directed by the judge, wrote and transmitted to the judge a letter, of the body of which the following is a copy:

"This will acknowledge receipt of your letter of April 5th, 1957, relative to the question whether it was necessary to make any response to the order to show cause. I agree that your letter covers the matter and I will make no further showing other than the deposition and of course under our stipulation the case is as far as we are concerned, that is to say my client has finally submitted for your consideration.

"I have been out of Chadron since the 7th of April and for that reason

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