Popular Mechanics Co. v. Fawcett Publications, 984.
| Decision Date | 03 October 1932 |
| Docket Number | No. 984.,984. |
| Parties | POPULAR MECHANICS CO. v. FAWCETT PUBLICATIONS, Inc. |
| Court | U.S. District Court — District of Delaware |
Hugh M. Morris, of Wilmington, Del., and Edward S. Rogers, of Chicago, Ill., for plaintiff.
Arthur G. Logan (of Marvel, Morford, Ward & Logan), of Wilmington, Del., and Chester W. Johnson, of Minneapolis, Minn., for defendant.
Popular Mechanics Company, the plaintiff, an Illinois corporation, publisher of the well-known monthly magazine "Popular Mechanics Magazine," usually called "Popular Mechanics," seeks a preliminary injunction restraining the defendant, Fawcett Publications, Inc., a Delaware corporation, from publishing a monthly magazine of the same general type and dealing with similar subject-matter under the title "Modern Mechanics" or "Modern Mechanics and Inventions." The magazines come into active competition with each other. The case turns largely on the use of the word "Mechanics."
Popular Mechanics has been published by the plaintiff since 1902. Upwards of 500,000 copies are sold each month. It is the best known magazine in its field. It is sold principally at news stands and in every state. The trade-name "Popular Mechanics" was registered by the plaintiff in the United States Patent Office November 17, 1914.
The defendant is the publisher of a number of magazines with a monthly circulation of approximately 2,500,000 copies. Included in these is the magazine complained of in this suit. From October, 1928, to August, 1932, it was published under the name "Modern Mechanics and Inventions," and since the latter date under the name "Modern Mechanix and Inventions." Its circulation varies from 75,000 to 100,000 copies a month.
Defendant desired to register the title of its magazine as a trade-mark. April 27, 1928, it made application to the Patent Office for registration of the words "Modern Mechanics" with an elliptical border line around these two words. Opposition to such registration was promptly filed by the plaintiff. The defendant filed a second application for the registration of the name "Modern Mechanics and Inventions" without any border line. This was likewise opposed by the plaintiff. Correspondence and negotiations of the most friendly character were carried on between the parties in August, 1928, in an effort to reach an agreement as to a name to be applied to defendant's magazine unobjectionable to the plaintiff. These efforts were unsuccessful. Litigation in the Patent Office followed with an appeal to the Court of Customs and Patent Appeals. Fawcett Publications, Inc., v. Popular Mechanics Co., 58 F. (2d) 838. Finally, May 31, 1932, the defendant was denied registration. June 27, 1932, this suit was brought.
It is a general rule repeatedly enforced in this district and circuit that a preliminary injunction will not be granted on ex parte affidavits unless in a clear case, and particularly where the plaintiff has delayed bringing suit. Lare v. Harper & Bros., 86 F. 481 (C. C. A. 3). Best Foods v. Hemphill Packing Co. (D. C.) 295 F. 425. Cinema Patents Co. v. Craft Film Laboratories (D. C.) 42 F. (2d) 749.
Does this case come within the above rule? Plaintiff contends that its exclusive rights under its trade-mark "Popular Mechanics" have been infringed by the defendant through the use of the words "Modern Mechanics" and "Modern Mechanics and Inventions"; and, further, that the defendant has been guilty of unfair competition in trade. Before the plaintiff is entitled to relief under its first contention, it must appear that it has a valid trade-mark and a right to prevent the defendant from using words only colorably different from such registered trade-mark. The Court of Customs and Patent Appeals affirming the Commissioner of Patents found that the words "Modern Mechanics" and "Modern Mechanics and Inventions" were deceptively similar to the name "Popular Mechanics." That decision, however, is not res judicata. Baldwin Co. v. Howard Co., 256 U. S. 35, 41 S. Ct. 405, 65 L. Ed. 816. The issue there was the right to registration in view of the registered trademark of plaintiff. The validity of plaintiff...
To continue reading
Request your trial
-
Henis v. Compania Agricola de Guatemala, Civ. No. 1530.
...Community v. Fouke Fur Co., D.C.Del., 286 F. 757; General Talking Pictures v. Stanley Co., D.C.Del., 42 F.2d 904; Popular Mechanics v. Fawcett, D.C.Del., 1 F.Supp. 292; United States v. Weirton Steel Co., D.C. Del., 7 F.Supp. 255. The party seeking a preliminary injunction must not only all......
-
Big O Tire Dealers, Inc. v. Goodyear Tire & Rubber Co.
..."Big Foot" was not descriptive. However, the only case Goodyear cites in connection with this proposition, Popular Mechanics Co. v. Fawcett Publications, Inc., D.Del., 1 F.Supp. 292, does not deal with the burden of proof on the descriptiveness issue. On the other hand, Big O is unable to c......
-
Acme Fast Freight v. United States
...v. Fouke Fur Co., D.C.Del., 286 F. 757; General Talking Pictures Corp. v. Stanley Co., D.C.Del., 42 F.2d 904; Popular Mechanics v. Fawcett, D.C. Del., 1 F.Supp. 292; United States v. Weirton Steel Co., D.C.Del., 7 F.Supp. 255. The parties seeking a temporary restraining order or a prelimina......
-
Benton v. Glenn McCarthy, Inc.
...v. Fouke Fur Co., D.C.Del., 286 F. 757; General Talking Pictures Corp. v. Stanley Co., D.C.Del., 42 F.2d 904; Popular Mechanics v. Fawcett Publications, D.C.Del., 1 F.Supp. 292; United States v. Weirton Steel Co., D.C.Del., 7 F.Supp. 255; General Talking Pictures Corp. v. Stanley Co., D.C.,......