Teter, Inc. v. Rheem Manufacturing Company, 14443.
| Citation | 334 F.2d 784 |
| Decision Date | 28 July 1964 |
| Docket Number | No. 14443.,14443. |
| Parties | TETER, INC., Plaintiff-Appellant, v. RHEEM MANUFACTURING COMPANY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
James R. McKnight, Chicago, Ill., for appellant.
Richard E. Alexander, Chicago, Ill., Harris Zimmerman, Oakland, Cal., Dawson, Tilton, Fallon, Lungmus & Alexander, Gardner & Zimmerman, Chicago, Ill., of counsel, for appellee.
Before KNOCH, KILEY and SWYGERT, Circuit Judges.
Plaintiff-appellant, Teter, Inc., hereinafter called "Teter," brought this action to review the Patent Office's cancellation of Teter's Registration No. 658,068 for the trademark "IMPERIAL" which is claimed by both parties, both of whom sell water heaters. The District Court affirmed the Patent Office decision and this appeal ensued.
George Teter, president of Teter, testified that in the early spring of 1945, when he was a partner in Continental Engineering Co., hereinafter called "Continental," engaged in fabrication of sheet metal accessories, he began to design water heaters. He checked the Domestic Engineering Directory, a "bible" in the plumbing trade, and found no prior user of IMPERIAL. He testified to a pilot run of 25 to 30 IMPERIAL water heaters by Continental in 1945 or 1946, after which he formed the Tetco Metal Products, Inc., incorporated April 30, 1946, to continue the water heater business of Continental.
On March 1, 1951, Teter was formed to sell the heaters made by Tetco Metal Products, Inc., and the trademark was assigned to Teter. All three companies operate on the same premises and are dominated by George Teter.
When Mr. Teter testified that the trademark was used on the original heaters sold by Continental, he stated that he had decals made, but that the early heaters did not have the name on them.
In 1956 Teter's attorney made a search prior to registering the trademark and found a registration of IMPERIAL on water heaters by Seidelhuber Iron and Bronze Works, Inc., hereinafter called "Seidelhuber," dated February 10, 1953, and claiming use since February 1, 1947.
In the belief that Seidelhuber had dropped use of IMPERIAL, Teter filed its application for registration which was rejected. Teter then filed a proceeding in the Patent Office to cancel Seidelhuber's registration of IMPERIAL as abandoned. When Seidelhuber failed to respond to notice of the cancellation proceeding, its registration was cancelled on September 27, 1957. Teter's registration issued February 4, 1958.
Meanwhile, on August 19, 1957, defendant-appellee, Rheem Manufacturing Company, hereinafter called "Rheem," had filed for record in the Patent Office an assignment of Seidelhuber's registration acquired June 30, 1953. Rheem was not a purchaser subsequent, but prior to the cancellation, at a time when Seidelhuber still possessed all its common law and statutory rights to IMPERIAL, and Rheem recorded its assignment prior to the cancellation.
On September 23, 1958, Rheem filed a petition to cancel Teter's registration which was granted. This was the decision of the Patent Office which was reviewed and affirmed by the District Court.
Teter contends that the testimony of George Teter established that Teter was the prior user of the trademark IMPERIAL on water heaters. The Trial Judge, however, noted that this contention was...
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