Phillips v. Hudnut
| Decision Date | 01 March 1920 |
| Docket Number | 1268. |
| Citation | 263 F. 643 |
| Parties | PHILLIPS v. HUDNUT et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted January 13, 1920.
Joseph L. Levy, of New York City, for appellant.
C. E Dunn and Nicholas M. Goodlett, both of New York City, for appellees.
This is an interference involving the right of Hudnut to obtain the registration of the word 'Nara' as trade-mark for toilet articles such as talcum, sachet, and face powder. Phillips had registered the word 'Nyra' and Mack the word 'Myra' as marks for goods of the same descriptive properties. The Examiner of Interferences held that the respective marks were one and the same, and awarded priority to Hudnut. He was affirmed by the Assistant Commissioner. After the decision of priority was announced by the Examiner, Hudnut filed a motion requesting him to adjudge that Phillips was not entitled to the use of the mark at the date of his application for registration. This was denied. Hudnut failed to appeal. However, the Assistant Commissioner reviewed the action of the Examiner in this regard on Phillips' appeal and reversed it.
It is clearly established that Hudnut adopted the mark in question in September, 1914, and used it continuously thereafter. Phillips claims May, 1914, as the time he commenced the use of the mark. In that month he had no established place of business, but made some sample boxes of toilet powder, placed upon them the mark here involved, and then forwarded them from New York, through the house for which he was then working, to three dealers in goods of that character, one in Texas, one in Philadelphia, and one in New Orleans. The boxes were sent without previous request by the consignees, and the price paid for each was 5 cents, the usual sale price of such an article being about 50 cents. No other use of the mark was made by him until 1916. The Assistant Commissioner held that this was not 'a bona fide business transaction-- was not doing business on Phillips' part, and was a mere laying basis for the filing of his application for registration, and created no trade-mark rights in Phillips.'
The right to a trade-mark exists independently of the statute. Registration simply constitutes prima facie evidence that the registrant is entitled to the mark. Fulton Waterworks Co v. Bear Lithia Spring Co., 47 App.D.C. 438. The trade-mark statute (section 1, 33 Stat. 724 (Comp. St. Sec 9485)) does not define what constitutes a trade-mark. We must go to the common law for that.
' Trade-mark Cases, 100 U.S. 82, 94 (25 L.Ed. 550); Macmahan Pharmacal Co. v....
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...in continuing commercial use in the future.10 Plaintiff attempts to avoid the leading decision in this line, Phillips v. Hudnut, 49 App.D.C. 247, 263 F. 643, 644 (1920), on the grounds that it was decided prior to the definition of "use" in the Lanham Act.11 But it is clear that neither thi......
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La Societe Anonyme des Parfums LeGalion v. Jean Patou, Inc.
...to consider usage sufficient when it is obviously contrived solely for trademark maintenance purposes. In Phillips v. Hudnut, 49 App. D.C. 247, 263 F. 643, 644 (1920), the court held, in circumstances somewhat more extreme than those in this case, that a company must do more than simply dis......
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United States Ozone Co. v. United States Ozone Co.
...exclusive appropriation and use. Trade-mark Cases, supra; Piggly Wiggly Corporation v. Saunders (D. C.) 1 F.(2d) 572; Phillips v. Hudnut, 49 App. D. C. 247, 263 F. 643; Stephano Bros. v. Stamatopoulos, supra. The Trade-Mark Act of 1905, as amended (15 USCA §§ 81-133), without changing the s......
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Lewis v. Trinklein (In re Trinklein)
...act of Congress. La Croix v. May, C.C. 1883, 15 F. 236. ‘The right to a trade-mark exists independently of statute.’ Phillips v. Hudnut, 1920, 49 App.D.C. 247, 263 F. 643, syllabus. ‘That nothing in this act [subchapter] shall prevent, lessen, impeach, or avoid any remedy at law or in equit......