R.L. Bennett & Sons v. Farmers' Seed & Gin Co.

• Decision Date: 27 March 1923
• Docket Number: 4035.
• Citation: 288 F. 365
• Parties: R. L. BENNETT & SONS v. FARMERS' SEED & GIN CO.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F. 365

R. L. BENNETT & SONS v. FARMERS' SEED & GIN CO.

No. 4035.

United States Court of Appeals, Fifth Circuit.

March 27, 1923

Raymond H. Saal, of New Orleans, La., W. F. Moore, of Paris, Tex and Emile Godchaux, of New Orleans, La. (Moore & Hardison, of Paris, Tex., and Milling, Godchaux, Saal & Milling, of New Orleans, La., on the brief), for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

The appellants allege in their bill of complaint that they have the exclusive right to use the words 'Bennett's,' 'Bennett's New Cotton,' and 'Bennett's Cotton Seed,' to designate the origin of cotton seed grown or produced by them for sale to the public; that the word 'Bennett's' was established as their trade-mark and thereafter registered as such under the Act of Congress of February 20, 1905, 33 Stat. 724, as amended (Comp. St. Secs. 9485-9516); and that the appellee is infringing such trade-mark and the rights of appellants under it by advertising and selling cotton seed under the name 'the Bennett New Cotton.' The bill prayed for a preliminary as well as a permanent injunction.

The appellee filed its answer, in which it admitted the use of the word 'Bennett' in connection with the sale by it of cotton seed, but defended its action in so doing by averring that that word was indicative of a variety of cotton, and also that its use by the appellee had been acquiesced in by the appellants. The District Court, after considering affidavits, exhibits, and interrogatories, and hearing testimony of the parties at interest, entered an order refusing an application for preliminary injunction. From that order this appeal is taken, under section 129 of the Judicial Code (Comp. St. Sec. 1121).

In 1908 the appellants began to breed and purify cotton seed, and since 1913 or 1914 have been advertising such seed as 'Bennett's Cotton Seed,' and the cotton produced therefrom as 'Bennett's New Cotton.' In a circular distributed by them, under the caption 'Why Called New Cotton,' it is stated:

'In the first place, the cotton did not exist before I (Bennett) started it,' and, after the method of cotton breeding is explained: 'This is cotton breeding and it has made Bennett's New Cotton the only cotton that has every quality all growers and most spinners want.'

In 1918, and perhaps earlier, the appellants sent samples of the cotton grown by them to the Texas Agricultural experiment station, where, in 1919 and 1920, it was listed as 'Bennett' under the heading 'Variety Name,' along with 'Lone Star' and other varieties of cotton. There is sufficient evidence to warrant the conclusion that 'Bennett' became well known as a variety of cotton. In the early spring of 1921 the appellee made known to the appellants that it was its purpose to engage in the cotton seed business, and purchased from them several thousand bushels and paid therefor the sum of $9,000.

The appellants edited and suggested changes in appellee's literature, furnished cuts, and assisted in the preparation of its advertising matter, in which it was stated in conspicuous type that the appellee would grow and sell the 'Bennett New Cotton,' and delivered to the appellee for its use their form of contract with growers of cotton which also described the cotton and cotton seed in similar manner. They also made recommendations as to how the cotton should be ginned and machinery therefor arranged, so as to protect the cotton seed and maintain its purity, which...