Stark Bros Nurseries Orchards Co v. Stark
| Decision Date | 31 January 1921 |
| Docket Number | No. 171,171 |
| Citation | 41 S.Ct. 221,65 L.Ed. 496,255 U.S. 50 |
| Parties | STARK BROS. NURSERIES & ORCHARDS CO. v. STARK et al |
| Court | U.S. Supreme Court |
Mr. Andrew B. Remick, of St. Louis, Mo., for petitioner.
Mr. Xenophon P. Wilfley, of St. Louis, Mo., for respondents.
This is a suit brought September 11, 1916, in the District Court of the United States by the petitioner, a Missouri corporation, against citizens of Missouri, for an infringement of a trade-mark, 'Stark Trees,' registered under the Act of Congress of February 20, 1905, c. 592, 33 Stat. 724, and amendments (Comp. St. §§ 9485-9516). The District Court found infringement and unfair competition, granted an injunction, and made a decree for an account of profits from March 11, 1914, when the infringement began, limiting the damages, however, to those suffered after August 26, 1916, that being the date when the plaintiff gave the defendant notice of the registration of the mark. The Circuit Court of Appeals concurred with the District Court as to the facts but limited the account as well as the damages to the date when notice was given of the registered mark, a few days before the bringing of this suit. 248 Fed. 154; Stark v. Stark Bros. Nurseries & Orchards Co., 257 Fed. 9, 168 C. C. A. 221. This limitation is the only question here.
By section 28 of the Trade-Mark Act it is made the duty of the registrant to give notice to the public by attaching certain specified words or abbreviations to the trademark or to the receptacle wherein the article is enclosed; 'and in any suit for infringement by a party failing so to give notice of registration no damages shall be recovered, except on proof that the defendant was duly notified of infringement, and continued the same after such notice.' 33 Stat. 730 (Comp. St. § 9514). The infringement that is sued for is infringement of a registered trademark, not infringement of a trade-mark. That is the plain meaning of the above words and the necessary scope of this suit since that is the scope of the jurisdiction of the District Court. A. Lescher & Sons Rope Co. v. Broderick & Bascom Rope Co., 201 U. S. 166, 172, 26 Sup. Ct. 425, 50 L. Ed. 710. It seems very plain that the plaintiff had a cause of action outside the statute, but that would have to be asserted elsewhere, as the suit was between citizens of the same State. The statute alone gave the right to come into this Court of the United States....
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