Local Trademarks v. Powers, 3290.

• Decision Date: 23 May 1944
• Docket Number: No. 3290.,3290.
• Citation: 56 F. Supp. 751
• Parties: LOCAL TRADEMARKS, Inc., v. POWERS et al.
• Court: U.S. District Court — Western District of Pennsylvania

56 F. Supp. 751

LOCAL TRADEMARKS, Inc., v. POWERS et al.

No. 3290.

District Court, E. D. Pennsylvania.

May 23, 1944.

Harry Fischer and Illoway & Fischer, all of Philadelphia, Pa., for plaintiff.

Joseph Singer, of Philadelphia, Pa., for defendants.

GANEY, District Judge.

This is a motion to dismiss a bill of complaint alleging among other grounds that the complainant is a mere licensee and has no right to maintain the action in its name.

The Lindsay and Brewster, Inc., of the State of New York secured a copyright in accordance with the Act of March 4, 1909, amended March 2, 1913, 17 U.S.C.A. § 1 et seq., giving it the exclusive right and privilege in and to a certain literary work, to wit: the "Miss Flora" series of newspaper advertisements, which literary work was created and published by Lindsay and Brewster, Inc. On or about December 15, 1938, Lindsay and Brewster, Inc., assigned and transferred its right, title and interest to the aforementioned copyright to Deward & Rich, Inc., a New York corporation, by a written assignment, duly recorded. On or about December 6, 1939, Deward & Rich, Inc., assignee as aforesaid, entered into an agreement with the complainant, Local Trademarks, Inc., whereunder the complainant was granted the exclusive right to use ten advertising campaigns among which was the "Miss Flora" series, upon certain conditions: (1) That the Local should pay to Deward Four Hundred Dollars ($400) for such exclusive right by paying five per cent (5%) of the net cash collected by it from the sale to its customers until the complainant should have paid Four Hundred Dollars ($400); and (2) when and if the Local paid to Deward the full sum of Four Hundred Dollars ($400) the Local should then acquire the full title to the said advertising campaign. The complainant entered into an agreement with William Didden for the use of the "Miss Flora" series for one year or fifty-two weeks at the price of One Dollar ($1) per mat; at the expiration of the contract the said William Didden died and the defendants, George Didden and Christina F. Powers, who qualified as executor and executrix of his estate, continued to use the mats of the copyrighted "Miss Flora" series without renewing the contract with the complainant and without making any payment therefor. The bill prays that the defendants be enjoined from publishing any of the copyrighted material and that they be required to pay such damages as has been sustained by the defendants and a reasonable attorney's fee.

In pressing its motion to dismiss, counsel for the defendants contends among other grounds that at most a mere license was granted by Deward & Rich, Inc., to the complainant and while an...