McGraw Tire & Rubber Co. v. Griffith

• Decision Date: 21 July 1911
• Citation: 198 F. 566
• Parties: McGRAW TIRE & RUBBER CO. v. GRIFFITH et al.
• Court: U.S. District Court — Southern District of New York

198 F. 566

McGRAW TIRE & RUBBER CO. v. GRIFFITH et al.

United States Circuit Court, S.D. New York.

July 21, 1911

Graham & L'Amoreaux, of New York City, for defendants.

WARD Circuit Judge.

The complainant, a corporation and citizen of the state of Pennsylvania, filed its bill against the defendants, citizens of the state of New York, for infringement of its common-law trade-mark in the use of the word 'Imperial' in connection with automobile tires and for unfair competition. The motion is for a preliminary injunction.

The use which the defendant Griffith or the Automobile Tire Company made of the word 'Imperial' in the summer and fall of 1908 was insignificant, with no effect whatever upon the market, and in my opinion entirely insufficient to establish a common-law trade-mark. It was the complainant which made the word known and gave it value in connection with the large and increasing manufacture of unguaranteed tires, which it began in the fall of 1909. The words, 'Imperial,' 'Made by the McGraw Tire & Rubber Company,' and 'E. Palestine, O.,' were moulded upon them.

If Griffith or the Automobile Tire Company could be supposed to have any prior rights in the word 'Imperial' in this connection, I think they abandoned it by the contract of May 3, 1910, under which they agreed to buy 7,500 unguaranteed tires from the complainant prior to November 1, 1910. These were to be of the Clincher and Dunlop types; the former the complainant might manufacture for any one at the same rates but the latter only for the Automobile Tire Company. Down to November 1st it bought these tires to the cost of $90,751.92 5,200 of them being Clinchers. All of these were marked as above stated. No claim whatever was made of a prior right in the word 'Imperial' except in connection with the suggestion of May 24, 1910, that the complainant should either sell all its tires to the Automobile Company or else have tires manufactured for it branded with another name than Imperial, which was never followed up.

January 5, 1911, the defendant Griffith organized the 'Imperial Tire Company' under the law of the state of New York. It had a capital of $5,000, and the incorporators were the defendant Griffith, his wife, and a gentleman from the office of his lawyers.

In April, 1911, the complainant heard that the defendants were selling tires made for them by others moulded with the words 'Imperial,' 'Made by Griffiths Tire &...