National Biscuit Co. v. Kellogg Co., No. 980.

CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)
Writing for the CourtWard & Gray, of Wilmington, Del., and Crichton Clarke, of New York City, for defendant
Citation22 F. Supp. 801
PartiesNATIONAL BISCUIT CO. v. KELLOGG CO.
Decision Date01 March 1938
Docket NumberNo. 980.

22 F. Supp. 801

NATIONAL BISCUIT CO.
v.
KELLOGG CO.

No. 980.

District Court, D. Delaware.

March 1, 1938.


Hugh M. Morris, of Wilmington, Del., Drury W. Cooper and Thomas J. Byrne (of Cooper, Kerr & Dunham), and Charles A. Vilas, all of New York City, for plaintiff.

Ward & Gray, of Wilmington, Del., and Crichton Clarke, of New York City, for defendant.

NIELDS, District Judge.

Following the receipt of the mandate of the Circuit Court of Appeals for this circuit in the above cause this court decreed: "That a perpetual injunction issue out of and under the seal of this court directed to said defendant, Kellogg Company, its officers, agents, servants, employees and attorneys and those in active concert or participating with them, its successors and assigns, restraining and enjoining it and them, and each of them, from the use of the name `SHREDDED WHEAT' as its trade name and from advertising or offering for sale its

product in the form and shape of plaintiff's biscuit in violation of its trade mark."

Pursuant to such decree a writ of injunction was served upon defendant on January 8, 1938.

January 20, 1938, defendant filed its petition setting forth a program with respect to the continued operation of its business and proposing to differently carton and package its whole wheat biscuit product. Plaintiff moved to dismiss this petition.

February 4, 1938, defendant filed its supplemental petition setting forth that since the hearing of the motion to dismiss, February 1, 1938, it had been necessary for defendant in filling its orders for defendant's products to enter upon its program, and defendant has been and is shipping its biscuit in the manner set forth in that program. The prayer of the supplemental petition is: "Wherefore, your petitioner repeats the prayer contained in said petition filed herein on January 20, 1938, in order that petitioner may be advised by the Court whether the program outlined in said petition and placed into operation by defendant is a violation of said injunction and if, in the Court's opinion, such program does violate said injunction in any manner that the particulars in which it violates the same may be pointed out by the Court so that defendant may have the opportunity to revise its said program to meet the views to be expressed by the Court."

In effect, the petition of defendant requests the court to advise the defendant what it can and what it cannot do. Courts are established to decide cases,...

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3 practice notes
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • 13 Diciembre 1944
    ...v. Siegel, 144 A. 274, City of Williamsport v. Williamsport Water Company, 150 A. 652; National Biscuit Company v. Kellogg Company, 22 F.Supp. 801. POINTS OF COUNSEL FOR THE GREAT WESTERN SUGAR COMPANY, RESPONDENT A demurrer to a petition under the Declaratory Judgments Act will lie in a pr......
  • California Products, Inc. v. Puretex Lemon Juice, Inc., No. A-7421
    • United States
    • Supreme Court of Texas
    • 23 Marzo 1960
    ...122, 192 P.2d 229(18); Glassford v. Glassford, 1953, 76 Ariz. 220, 262 P.2d 382(3); National Biscuit Co. v. Kellogg Co., D.C.Del.1938, 22 F.Supp. 801; J. Greenebaum Tanning Co. v. National Labor Relations Board, 7 Cir., 129 F.2d 487(2); 154 A.L.R. 740, et In the case of Southern Traffic Bur......
  • University Distributing Co. v. United States, No. 7065.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 14 Marzo 1938
    ...argument confuses the power of the Commissioner to disregard a statutory mandate with his undoubted power to waive the requirements of 22 F. Supp. 801 the Treasury regulations." And see United States v. Andrews, 58 S.Ct. 315, 82 L.Ed. ___, also decided January 3, In the case at bar, th......
3 cases
  • Anderson v. Wyoming Development Company, 2267
    • United States
    • United States State Supreme Court of Wyoming
    • 13 Diciembre 1944
    ...v. Siegel, 144 A. 274, City of Williamsport v. Williamsport Water Company, 150 A. 652; National Biscuit Company v. Kellogg Company, 22 F.Supp. 801. POINTS OF COUNSEL FOR THE GREAT WESTERN SUGAR COMPANY, RESPONDENT A demurrer to a petition under the Declaratory Judgments Act will lie in a pr......
  • California Products, Inc. v. Puretex Lemon Juice, Inc., No. A-7421
    • United States
    • Supreme Court of Texas
    • 23 Marzo 1960
    ...122, 192 P.2d 229(18); Glassford v. Glassford, 1953, 76 Ariz. 220, 262 P.2d 382(3); National Biscuit Co. v. Kellogg Co., D.C.Del.1938, 22 F.Supp. 801; J. Greenebaum Tanning Co. v. National Labor Relations Board, 7 Cir., 129 F.2d 487(2); 154 A.L.R. 740, et In the case of Southern Traffic Bur......
  • University Distributing Co. v. United States, No. 7065.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • 14 Marzo 1938
    ...argument confuses the power of the Commissioner to disregard a statutory mandate with his undoubted power to waive the requirements of 22 F. Supp. 801 the Treasury regulations." And see United States v. Andrews, 58 S.Ct. 315, 82 L.Ed. ___, also decided January 3, In the case at bar, th......

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