U.S. Time Corp. v. G. E. M. of Boston, Inc.
| Decision Date | 03 January 1963 |
| Citation | 345 Mass. 279,186 N.E.2d 920 |
| Parties | The UNITED STATES TIME CORPORATION v. G. E. M. OF BOSTON, INC. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John J. Graham, Boston, for respondent.
James B. Tiffin, Boston, for petitioner.
Before WILKINS, C. J., and WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.
This is a petition for contempt by a manufacturer of watches against the owner of a store in Saugus. The alleged contempt was on December 29, 1961, and was the violation of a temporary injunction issued under a prayer of a bill in equity, which read, 'That the respondent, its agents, employees and servants be temporarily enjoined until further order of the court from knowingly and wilfully advertising, offering for sale or selling or allowing to be sold on premises subject to its control any product bearing the petitioner's name or trademarks, to wit: watches bearing the trademarks Timex or Ingersoll at prices less than the minimum fair trade prices established by the petitioner in pursuance of its contracts with retailers within the Commonwealth.' The judge found the respondent to be in contempt and ordered it to pay $1,000 to the petitioner or its attorneys. The respondent appealed. The judge made a report of the material facts found by him. The evidence is reported.
The petitioner sells its watches throughout the Commonwealth. The watches and their containers bear the petitioner's brands and trade marks and are in competition with watches produced by others. The petitioners has entered into fair trade contracts with retailers, who have agreed that they will not advertise, offer for sale, or sell any products bearing the petitioner's trade marks at prices less than the prices set forth in a schedule of minimum prices.
Attached to one of the current fair trade contracts is a schedule in which the selling price of Timex watches is $29.95. On or about August 31, 1961, the petitioner, 'having received evidence of violation by the respondents [sic] of the petitioner's fair trade prices,' notified the respondent by letter of its fair trade contract and furnished a copy of the contract and its current price schedule. 1 'After that, 2 a person engaged by the petitioner went to the store of the respondent and asked for a Timex electrical watch.' She was shown one bearing the price of $29.95. Watches and other articles in a display case bore a discount notation. She asked 'the salesman' if she could have a discount on the watch. He said that she could and sold it to her at a price substantially less than $29.95.
The foregoing are substantially all the facts in the report of the judge.
The respondent denies that the salesman who sold the watch was its employee, and relies upon an alleged lease of a portion of its store to an unnamed concessionaire who, it contends, controlled that portion of the premises where the sale took place. No lease, however, was offered in evidence. In support of its position the respondent refers to its answer to paragraph 2 of the petitioner's notice to admit facts, which was read without objection at the hearing by counsel for the petitioner. See G.L. c. 231, § 69 (). Paragraph 2 was 'That the respondent, G. E. M. of Boston, Inc. is in charge of the operation of the store in Saugus located on the Lynn Fells Parkway at Route 1, upon which there is a sign 'G. E. M." The answer was, 'With regard to the petitioner's statement that G. E. M. of Boston, Inc. is in charge of the operation of the store in Saugus upon which there is a sign 'G. E. M.,' respondent says in answer that G. E. M. of Boston, Inc. does have such a store, but that G. E. M. of Boston, Inc. does not have charge of the sale of any of petitioner's products, that the respondent has leased an area to another corporation which is in charge of its own premises.'
Based on the testimony of its general manager, the respondent contends that it did everything it could to prevent any violation of the injunction. This apparently consisted of talking with the manager of the 'jewelry section.' The judge did not accept this as being...
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