Pacific Supply Coop v. Farmers Union Central Exch., Inc.

• Decision Date: 16 July 1963
• Docket Number: No. 17967.,17967.
• Citation: 318 F.2d 894
• Parties: PACIFIC SUPPLY COOPERATIVE, an Oregon Cooperative Corporation, Appellant, v. FARMERS UNION CENTRAL EXCHANGE, INCORPORATED, a Minnesota Corporation, and National Cooperatives, Inc., a District of Columbia Corporation, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

318 F.2d 894 (1963)

PACIFIC SUPPLY COOPERATIVE, an Oregon Cooperative Corporation, Appellant, v. FARMERS UNION CENTRAL EXCHANGE, INCORPORATED, a Minnesota Corporation, and National Cooperatives, Inc., a District of Columbia Corporation, Appellees.

No. 17967.

United States Court of Appeals Ninth Circuit.

June 3, 1963.

Rehearing Denied July 16, 1963.

Sherwood, Tugman & Green and Cameron Sherwood, Walla Walla, Wash., Comfort, Dolack & Hansler, and Robert A. Comfort, Tacoma, Wash., for appellant.

Doherty, Rumble & Butler and Eugene M. Warlich, St. Paul, Minn., Houghton, Cluck, Coughlin & Schubat, and Jack R. Cluck, Seattle, Wash., Richard H. Magnuson, St. Paul, Minn., for appellee Farmers Union Central Exchange, Inc.

Chadwick, Chadwick & Mills and Orville H. Mills, Seattle, Wash., Beale & Jones, and Irving M. Tullar, Washington, D.C., for appellee National Cooperatives, Inc.

Before BARNES, Circuit Judge, MADDEN, Judge, United States Court of Claims, and DUNIWAY, Circuit Judge.

BARNES, Circuit Judge.

This is a trademark infringement and unfair trading case, involving as well alleged inducement to breach, and interference with, plaintiff-appellant's contractual relations with its affiliated local member cooperatives, and with third party defendant, National Cooperatives, Inc.

The party plaintiff, Pacific Supply Cooperative, the defendant, Farmers Union Central Exchange, Inc., and the third party defendant, National Cooperatives, Inc., are all nonprofit cooperative corporations. They will be hereinafter referred to respectively as "Pacific", "FUCE", and "National". Pacific is the appellant; both FUCE and National are appellees.

Pacific, FUCE and National are organized under the laws of Oregon, Minnesota and the District of Columbia, respectively, with principal places of business at Walla Walla, Washington; South St. Paul, Minnesota; and Albert Lea, Minnesota.

This is an interlocutory appeal, under Rule 54(b) of the Federal Rules of Civil Procedure, from a judgment of dismissal of all claims against appellee National and the claims arising from the trademark issue, and the related issues of pendent unfair competition, raised against appellee FUCE, preserving the action against FUCE on other issues. The express determination by the trial court, required by Rule 54(b), was made and, as well, that there was no genuine issue of fact as to any matter covered by the judgment.

Jurisdiction rests not only upon diversity (28 U.S.C. § 1332), and the federal statutes relating to trademarks and unfair competition (28 U.S.C. § 1338), but, as appellant states, is generally founded upon the Trademark Act of July 5, 1946 (the Lanham Act)¹ "and specifically on Section 39 of that Act 15 U.S.C. § 1121." Jurisdiction on this appeal rests on 15 U.S.C. § 1121 and 28 U.S.C. § 1291.

National was not in the case originally, but was brought in as an indispensable party by order of the trial court.

The parties strongly disagree in their factual statement. Appellant's factual statement is marred by frequent references to rulings of the trial judge which it alleges were improper or inconsistent, interspaced with argument and criticism direct and implied relative to such rulings, and the alleged merits of its case.

Appellees' attack on appellant's brief, and its motion to dismiss the appeal on the ground it constitutes a flagrant violation of Rule 18(c) and (e) of this court, has substance. There are inadequate record references to alleged facts; there are vital and essential omissions from quoted material; and there are references to documents stricken from the record by the trial court without reference to the court's having so ruled. Appellant's brief is far from a model.

This court cannot condone such a presentation. Every appellate court is tempted to summarily grant such a motion as is here before us, for it seems the only way to bring the court's requirements as to brief home to counsel with sufficient force as to cause counsel to follow and obey our rules of court. Yet most judges are plagued with the conviction that the sins of attorneys should not be visited upon their clients. With that thought uppermost, we decline to dismiss the appeal as moved by FUCE.

We proceed to the merits. Appellee National, critical of appellant's factual statement, lists certain stipulated facts, quoting the record and citing transcript page numbers for each statement made. Pacific denies that such stipulated facts are "controlling" (Reply Br. p. 3) (as they are characterized by National), but does not dispute in any way the correctness of the stipulated facts so referred to. For that reason, we adopt such statement, with its references to the record:

PORTION OF STIPULATED FACTS

"I

"Prior to the organization of National Cooperatives, Inc., an Indiana corporation and subsequently by the reorganization, a District of Columbia cooperative corporation, the Midland Cooperative Oil Association, Minneapolis, Minnesota (later, Midland Consumers Co-op) and the Union Oil Company Co-operative, Kansas City, Missouri (later, Consumers Cooperative Association) adopted and used the trademark `CO-OP\' on and in connection with the advertising, manufacture, sale and distribution of various products, including petroleum products, tires and tubes." (R. 1451-1452; 9010-9011)

"II

"Prior to the organization of National, Midland Cooperative Oil Association and the Union Oil Company Cooperative lawfully registered the trademark `CO-OP\' in the United States Patent Office." (R. 1452; 9011-9012)

"III

"Prior to the organization of National and in 1932, six cooperative associations, i. e.:

"1. Walla Walla Farm Bureau, Inc., Walla Walla, Washington

"2. Farmers Union Oil and Supply Co., Coeur d\'Alene, Idaho

"3. Twin City Oil and Gas Company, Milton-Freewater, Oregon

"4. Farmers Union Oil Company of Polk County, Salem, Oregon

"5. Farm Bureau Co-op, Hermiston, Oregon and

"6. Cooperative Oil Company, Caldwell, Idaho were local retail cooperatives supplying their members with tires, tubes and other products bearing the trademark `CO-OP\' so registered by the predecessor of Midland Cooperative Oil Association and by Union Oil Company Cooperative." (R. 1452; 9012-9013)

"IV

"National was first organized on February 23, 1933, under the laws of Indiana, with principal office in Chicago, Illinois, as a cooperative corporation, for the purpose, among others, of pooling purchasing power, obtaining and registering trademarks, including those involved in this litigation, and for the purpose of obtaining supplies for sale and distribution to its members and identified by such trademarks. Substantially all of National\'s business is with its regional wholesale cooperatives. Its charter members comprised six regional wholesale cooperatives, including Midland Cooperative Oil Association, later Midland Consumers Cooperative, Union Oil Company Cooperative, now Consumers Cooperative Association, and Farmers Union Central Exchange, Inc., hereinafter referred to as FUCE. Said regional wholesale cooperatives, including FUCE, have continued as members and shareholders of National to date." (R. 1452-1453; 9014-9015)

"V

"In the organizational meetings of National arrangements were initiated for the assignment and the transfer of the trademark `CO-OP\' to National by Midland Cooperative Oil Association and Union Oil Company Cooperative, which resulted by terms of the assignments in the transfer of the entire right, title and interest in and to said trademarks and the good will of the business symbolized thereby, to National, as shown by Exhibits ...... and ......" (R. 1453; 9015-9016)

"VI

"Subsequent to the organization of National and on December 19, 1933, the six local retail cooperatives identified in Paragraph III caused plaintiff, Pacific, to be organized with its principal office in Walla Walla, Washington. Upon organization Pacific applied for membership in National and the benefits thereof as a regional wholesale cooperative, and such application was accepted at a meeting of the board of directors of National, held February 12, 1934. At all times since, Pacific has been a regional wholesale cooperative and member shareholder of National." (R. 1453-1454; 9016)

"VII

"National, as now reorganized, is a non-profit cooperative association organized under Act of Congress, June 19, 1940, Public No. 642, 76th Congress, 54 Stat. 480, with principal office in Albert Lea, Minnesota. The reorganized corporation acquired all of the assets and assumed all of the liabilities of its predecessor. The membership of National is now composed of 26 regional wholesale cooperatives with equal rights, operating in most of the principal parts of the United States and in some parts of Canada. National\'s board is composed of representatives of the regional members. All capital of National, except loan capital, has been contributed by the regionals." (R. 1454; 9016-9017)

"VIII

"Pacific is a non-profit cooperative corporation, organized under Oregon Revised Statutes, Section 77-5-01, et seq., as a regional wholesale cooperative engaged in supplying farm supplies, including petroleum products, tires and tubes, to local retail cooperatives and marketing farm crops. Pacific, since 1950, has done business with about 120 local retail cooperatives. These locals own the voting shares of Pacific and serve at least fifty thousand farm families. All capital of Pacific, except preferred stock and loan capital, has been contributed by local retail cooperatives. Approximately 90% of these retail cooperatives are located in Washington, Idaho and Oregon, of which about 16 are located in Washington, at present. Pacific also does business in the following states: Northern California, Western Montana, Wyoming and Alaska. Pacific is licensed to do business in the foregoing states. About 40% of Pacific\'s gross volume is in petroleum products and about 15% is in crop marketing transactions. Pacific has never refined petroleum

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