Symonds v. Greene

• Decision Date: 15 October 1886
• Citation: 28 F. 834
• Parties: SYMONDS v. GREENE and others.
• Court: U.S. District Court — Southern District of New York

28 F. 834

SYMONDS v. GREENE and others.

United States Circuit Court, S.D. New York.

October 15, 1886

The defendants insist that the motion should be denied for want of jurisdiction of the cause in this court; because of the use of the name by Sellers Bros.; and because the name indicates a class of those goods, instead of representing them to be the orator's.

As jurisdiction is not given to this court in this class of cases, except where the matter in dispute exceeds the sum or value of $500, there would be difficulty in maintaining the jurisdiction if the profits to be recovered were the measure of the orator's rights involved; but that is not so understood. An injunction may be of much greater value to the orator than any amount he may show himself entitled to and it cannot be said now that such value may not exceed the limit required.

The use of that name by Sellers Bros. was so long ago, and so limited, that it cannot fairly be considered to now have any effect upon the indication by it of the source of goods to which it has for so many years since been applied. When the orator first began to use it, it might have indicated that the goods were Sellers Bros., and might not, but now it would not indicate to any one in the trade that the goods were Sellers Bros., nor would their former use of it now confuse its signification. It is not applied to the kind which Beschke patented,-- to indicate that kind of goods,-- and does not appear to be a name which any class of goods has acquired, and does not appear to be the trade name of the plaintiff's goods. Still, if the plaintiff adopted the name on account of value which it had acquired from its use by Sellers Bros., he would not appear to have any just right to it now which a court of equity ought to protect. But Sellers Bros. terminated their contract with the patentee apparently on account of its unprofitableness. The plaintiff did not take up that manufacture, but commenced making a different kind, and there is not enough in the case to show that he appropriated the name wrongfully when he took it.

The plaintiff has had two decrees in the courts of Pennsylvania establishing his right to this name as a trade-mark, as against others, for his packing; and these cases were instituted at Philadelphia, where the use of the name by Sellers Bros. was principally had, and where that defense could have been made if available.

On the whole case as it now...