Pure Oil Co. v. Puritan Oil Co., 185.

Citation127 F.2d 6
Decision Date14 March 1942
Docket NumberNo. 185.,185.
PartiesPURE OIL CO. v. PURITAN OIL CO., Inc.
CourtU.S. Court of Appeals — Second Circuit

Kelly Bell, of Chicago, Ill., (Gross, Hyde & Williams of Hartford, Conn., and Vinson, Elkins, Weems & Francis, of Houston, Tex., of counsel) for appellant.

George H. Cohen, Joseph W. Ress, and Naaman Cohen, all of Hartford, Conn., for appellee.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This appeal involves only the question of the substantive jurisdiction of the district court. The complaint on its face appears to have been framed under the Trade-Mark Act of 1905 alone; it alleged that the plaintiff was the owner of a number of registered trade-marks which contained the word, "Pure," or its first three letters, "Pur," and that the defendant, which operated a "service station" in Hartford, Connecticut, had infringed these marks by selling oil and gasoline under the name, "Pure," in interstate commerce. Upon the trial it appeared that the plaintiff did a large interstate business in the sale of gasoline and oil (originally including the supply of filling stations in Connecticut which it had, however, abandoned before action brought), and that it sold its products under a number of names, registered as trade-marks, all containing the letters, "Pur," which had acquired a proprietary secondary meaning. The defendant operates a "service station" in Hartford where it sells gasoline and oil under the name, "Pure" and "Puritan," by dispensing these substances to all automobiles which come along; 95% of these are "recurrent" customers. It imported into Connecticut from Indiana some translucent "globes" which it has placed upon the pumps by which it dispenses its gasoline and which contain the word "Pure," and it displays the word, "Puritan," at the station. The judge held that the plaintiff had not shown that the defendant had used the registered mark in interstate commerce, or that the value of the "amount in controversy" was $3,000; he also held that the "cause of action" set up under the Trade-Mark Act was not "substantial" enough to confer an incidental or pendent jurisdiction under the doctrine of Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L. Ed. 114, and Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 324, 325, 59 S.Ct. 191, 83 L.Ed. 195. For these reasons he dismissed the complaint for lack of jurisdiction.

We start with the fact that the only wrong forbidden by § 96 of Title 15 U.S.C. A. is a "use" of the mark in interstate commerce (United States Printing and Lithograph Company v. Griggs, Cooper & Co., 279 U.S. 156, 49 S.Ct. 267, 73 L.Ed. 650), and it has been often held, as the plaintiff argues, that jurisdiction depends solely upon the allegations of the complaint. City Railway Co. v. Citizens Street R. R. Co., 166 U.S. 557, 17 S.Ct. 653, 41 L.Ed. 1114; Pacific Electric Ry. Co. v. Los Angeles, 194 U.S. 112, 24 S.Ct. 586, 48 L.Ed. 896; Hull v. Burr, 234 U.S. 712, 34 S.Ct. 892, 58 L.Ed. 1557; South Covington C. & St. Ry. Co. v. Newport, 259 U.S. 97, 42 S.Ct. 418, 66 L.Ed. 842; Mosher v. Phoenix, 287 U.S. 29, 53 S. Ct. 67, 77 L.Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062; Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Moore v. Chesapeake & O. Ry. Co., 291 U.S. 205, 54 S.Ct. 402, 78 L.Ed. 755. If so, the complaint would seem to be sufficient, because, although it alleged specifically only that the defendant operated a "service station" in Hartford, yet the ninth article characterized the sales at that station as follows: "Defendant has * * * used the name, `Pure' * * * in interstate commerce in connection with the sale of gasoline." Certainly there is no inherent contradiction between operating a local "service station" and using the name in interstate commerce, and while it may be argued that the allegation was one of law, it was certainly enough to admit amendment and the facts which could have been substituted would have sufficed, as we shall show. Hence if we were confined to the allegations in the complaint, we should hold that the action lay under § 96 of Title 15 U.S.C.A.; or if not that, certainly it presented a not "plainly unsubstantial" claim of jurisdiction under that section which gave the court pendent jurisdiction over the cause of action for unfair competition.

The defendant insists, however, that we may not stop at the complaint since the jurisdictional allegations are in issue; on the contrary, that the plaintiff has the burden of showing that the case was "really and substantially" within the court's jurisdiction. § 80 of Title 28 U.S.C.A.; McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; KVOS, Inc., v. Associated Press, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183; Gibbs v. Buck, 307 U.S. 66, 72, 59 S.Ct. 725, 83 L.Ed 1111; Thomson v. Gaskill, 314 U.S. ___, 62 S.Ct. 673, 86 L.Ed. ___. All those cases chanced to concern the issue of the "amount in controversy" and did not arise under a statute conferring a special jurisdiction like § 97 of Title 15 U.S.C.A. Nevertheless, we are not disposed to limit § 80 of Title 28 U. S.C.A. to causes, jurisdiction over which was given the district court by the same statute in which it first appeared (Act of March 3, 1875, 18 Stat. 470). It imposes an affirmative duty upon the district court jealously to scrutinize its own jurisdiction, an admonition which it would be unreasonable to circumscribe to causes now governed by § 41(1) of Title 28 U.S.C.A. Therefore we agree with...

To continue reading

Request your trial
32 cases
  • Steele v. Bulova Watch Co
    • United States
    • U.S. Supreme Court
    • December 22, 1952
    ...United States Printing & Lithograph Co. v. Griggs, Cooper & Co., 1929, 279 U.S. 156, 49 S.Ct. 267, 73 L.Ed. 650; Pure Oil Co. v. Puritan Oil Co., 2 Cir., 1942, 127 F.2d 6. 13 See Vacuum Oil Co. v. Eagle Oil Co., C.C.1907, 154 F. 867. 14 2 Cir., 1908, 166 F. 261, affirming, C.C., 160 F. 184.......
  • Rumbaugh v. Winifrede Railroad Company
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • March 2, 1964
    ...601 (1st Cir. 1959); Massachusetts Universalist Convention v. Hildreth & Rogers Co., 183 F.2d 497 (1st Cir. 1950); Pure Oil Co. v. Puritan Oil Co., 127 F.2d 6 (2d Cir. 1942). See generally Comment, 46 Ill.L.Rev. 646 19 Presentation of a substantial claim for purposes of the Hurn doctrine do......
  • Ramirez & Feraud Chili Co. v. Las Palmas Food Company
    • United States
    • U.S. District Court — Southern District of California
    • November 8, 1956
    ...v. Alba Trading Co., 2 Cir., 127 F.2d 9, certiorari denied, 1942, 317 U.S. 641, 63 S.Ct. 33, 87 L.Ed. 517; Pure Oil Co. v. Puritan Oil Co., 2 Cir., 1942, 127 F.2d 6; Bulova Watch Co. v. Stolzberg, D.C.Mass.1947, 69 F.Supp. 543; Reviser's Note to § 1338(b), 28 U.S.C.A. In a case where divers......
  • Time, Inc. v. TIME INC.
    • United States
    • U.S. District Court — Southern District of California
    • July 29, 1954
    ...v Alba Trading Co., 2 Cir., 127 F.2d 9, certiorari denied, 1942, 317 U.S. 641, 63 S.Ct. 33, 87 L.Ed. 517; Pure Oil Co. v. Puritan Oil Co., 2 Cir., 1942, 127 F.2d 6; Bulova Watch Co. v. Stolzberg, D.C.Mass.1947, 69 F.Supp. 543; Reviser's Note to § 1338(b), 28 U.S.C.A. Pendent jurisdiction un......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT