Nagrom Corporation v. Cock'N Bull, Inc.

• Decision Date: 06 March 1957
• Docket Number: Civ. A. No. 1637-55.
• Citation: 149 F. Supp. 217
• Parties: NAGROM CORPORATION and Cock 'N Bull Products, Plaintiffs, v. COCK 'N BULL, Inc., A. Edwin Stern, Jr., and John J. Murphy, Defendants.
• Court: U.S. District Court — District of Columbia

149 F. Supp. 217

NAGROM CORPORATION and Cock 'N Bull Products, Plaintiffs, v. COCK 'N BULL, Inc., A. Edwin Stern, Jr., and John J. Murphy, Defendants.

Civ. A. No. 1637-55.

United States District Court District of Columbia.

March 6, 1957.

Joseph P. Tumulty, Jr., Washington, D. C., and C. Dickerman Williams, New York City, for plaintiffs.

Bernard F. Garvey, and George Garvey, Washington, D. C., for defendants.

HOLTZOFF, District Judge.

This is an action for an injunction to restrain unfair competition, namely, the use of the name Cock 'N Bull by a restaurant located in this District.

For twenty years the plaintiff Nagrom Corporation has been operating a restaurant in Los Angeles known as the Cock 'N Bull. The evidence shows that this restaurant has acquired considerable national prominence and a great deal of publicity, not only locally but on a nation-wide basis. Much of this publicity is in periodicals having nation-wide circulation. In addition, Cock 'N Bull Products, an affiliated corporation, has for a number of years been selling certain beverages and food products under the trade-mark Cock 'N Bull. This trademark has been registered in the Patent Office. The two plaintiffs have spent a great deal of money in advertising their restaurant and their products.

A little over two years ago the defendant Cock 'N Bull, Inc., started to operate a small restaurant in the business section of Washington, D. C., which is also called Cock 'N Bull. The defendant Stern is the principal officer and stockholder of the defendant corporation. The defendant Murphy was originally in that position but has sold his interest to the defendant Stern.

A month ago this Court had occasion to endeavor to summarize the applicable principles of law that must govern the disposition of the present case. In Champion Paper & Fibre Co. v. National Association of Mutual Insurance Agents, D.C., 148 F.Supp. 123, the following principles were formulated. Unfair competition, consisting of the use of another person's trade name may be one of three kinds: first, the borrower's use may be in connection with competing goods or services; second, the borrower's use may be in connection with non-competing goods or services, but under circumstances giving rise to the reasonable possibility of an inference on the part of the public that these goods and services emanated from the owner of the trademark; and third, the borrower's use may be in connection with non-competing goods or services, the use being so foreign to that of the owner as to preclude any identification or confusion between the two.

It was held in that case an action for an injunction lies in the first two instances, but not in the third. The case there presented fell in the third category. The plaintiff was a manufacturer and dealer in paper products using the trademark Champion with a figure of a knight in armour on horseback. The defendant was an association of insurance agents that used a similar trade-mark. The Court held that there was absolutely no similarity between the activities of the plaintiff and defendant and there was no likelihood that any confusion between the two would be caused in the mind of the public, because the average member of the public would not be likely to think that the paper manufacturer had gone into the insurance business.

In this case we have a somewhat different situation. Here both the plaintiff and the defendant are using the same name for a restaurant. Consequently there is a real possibility of a...