Marshall Mfg. Co. v. Verhalen

• Decision Date: 29 May 1942
• Docket Number: No. 13208.,13208.
• Citation: 163 S.W.2d 665
• Parties: MARSHALL MFG. CO. v. VERHALEN et al.
• Court: Texas Court of Appeals

163 S.W.2d 665

MARSHALL MFG. CO. v. VERHALEN et al.

No. 13208.

Court of Civil Appeals of Texas. Dallas.

May 29, 1942.

Rehearing Denied June 26, 1942.

Appeal from District Court, Dallas County; John A. Rawlins, Judge.

Suit by Marshall Manufacturing Company against Walter Verhalen and others for injunction and damages for infringement of patent and for unfair competition. From a judgment entered upon directed verdict in favor of defendants, plaintiff appeals.

Judgment reversed, and cause remanded.

John M. Spellman, S. P. Sadler, and Douglas E. Bergman, all of Dallas, for appellant.

Thomas G. Murnane, of Dallas, for appellees.

BOND, Chief Justice.

Appellant, as plaintiff below, instituted this suit against Walter Verhalen et al. for infringement of its trade-mark on bushel and half-bushel fruit and vegetable shipping baskets, and for unfair competition in that respect, for injunction, and for damages. At the conclusion of plaintiff's evidence, on motion of the defendants, the trial court peremptorily instructed the jury to return a verdict against the appellant and, in judgment, denied it the relief sought.

The trade-mark of appellant's baskets is one continuous red stave extending down one side of the baskets, under the bottom and up the directly opposite side; and the baskets manufactured by the defendants, which are claimed to be infringement upon and in unfair competition to plaintiff's specially designed baskets, bear two such continuous staves of the same type and distinctive red color, placed at right angles to each other, so that, in most positions, only one of the staves is visible to the casual observer. The red color in the staves is not functional in either of the baskets; they are merely ornamental and designed to designate the origin and source of the goods. Baskets manufactured by both the plaintiff and the defendants were presented in trial of the cause, and are here exhibited, which are clearly indicative of competitive rivalry by the manufacturers of the alleged similarly designed baskets, presenting, we think, issues as to whether they are calculated to create confusion and infringement and unfair competition among the manufacturing concerns; the decision of which rests solely with the fact-finding agency.

Then, too, the evidence is uncontroverted that the designed trade-mark of appellant, with one continuous red stave extending around its baskets, was duly registered in 1931 under the applicable Federal Act of February 20, 1905, in the Patent Office, Washington, D. C., and subsequently filed in the office of the Secretary of State, of the State of Texas, under Texas law authorizing priority of registration of labels, trade-marks, designs, devices, imprints, and forms of advertisement. These registrations, at least, raise definite prima facie presumption that the plaintiff was the owner of the trade-mark, and that it was the original designer thereof, and creates an assumption of validity. DePont Cellophane Co. v. Waxed Products Co., 2 Cir., 85 F.2d 75; Alfred Schneier Co. v. Bramson, D.C., 16 F.Supp. 493; Hygienic Products Co. v. Coe, 66 App.D.C. 98, 85 F.2d 264. Such presumption, however, may be, and we think in this case was, rebutted, but the registrations of the technical trademark raises an issue of fact, which was within the exclusive province of the jury to determine.

The same rule, reflecting evidence of the adoption of trade-marks, applies with equal force to the right of the court to invade the province of the jury: There is substantial evidence in the record that plaintiff adopted the continuous red stave in the field of natural wood color in its bushel and...