Vredenburg v. Safety Devices Corp.
Decision Date | 03 May 1955 |
Citation | 270 Wis. 36,70 N.W.2d 226 |
Parties | , 105 U.S.P.Q. 382 Arthur VREDENBURG, d/b/a Broadway Mfg. Co., Respondent, v. SAFETY DEVICES CORP., a Wis. corporation, Appellant. |
Court | Wisconsin Supreme Court |
Peter J. Kondos, Mark M. Camp and Michael J. Kondos, Milwaukee, for appellant.
D'Amato & Fryatt, Waukesha, for respondent.
The allegations of the complaint material to the questions raised by the appeal are:
'3. That, as the plaintiff is informed and verily believes, the defendant has since December 1, 1953, and at all times material herein been engaged in the manufacture, sale and marketing of a metal collapsible saw horse known as 'Handi-Horse'; * * *
'4. That the plaintiff has, since May 28, 1949, produced an adjustable steel horse known as 'Handi-Horse'; that said name 'Handi-Horse' was published and the plaintiff's product identified by said name 'Handi-Horse.'
'5. That the plaintiff has since said time and now does manufacture and market said produce known as 'Handi-Horse'; that said 'Handi-Horse' has both national and international circulation and market.
'6. That the plaintiff owns and has exclusive right to the use of the Trade Mark 'Handi-Horse' and has during the period of said use continuously advertised said product and Trade Mark both nationally and internationally.
'7. That as the plaintiff is informed and verily believes, the defendant has for sometime past, without authority or right infringed upon the rights of the plaintiff by using the name 'Handi-Horse' upon its products to the plaintiff's damage; that the plaintiff has at no time consented or permitted the defendant to use said name.
'8. That on or about January 12, 1954, when the plaintiff learned that the defendant was infringing upon the Trade-Mark the plaintiff caused to be served upon the defendant a Notice to cease and desist from using the name 'Handi-Horse.'
The order overruling the demurrer and granting the injunction was entered August 16, 1954. Notice of appeal is dated November 15 and the record transmitted by the trial court to this one was received here December 6, 1954. The only demurrer appearing therein is one on the ground that there is another action pending between the same parties for the same cause. Appellant says (and respondent denies) that the order appealed from does not deal with that demurrer but with a general demurrer. On March 23, 1955, long after the record came to the Supreme Court, appellant filed in the trial court, and caused to be transmitted to us as a supplemental return, the affidavit of appellant's counsel that in June, 1954, he served and filed a general demurrer to the complaint but that for reasons unknown it was not in the trial court's file of this action on the date when the record was transmitted to this court. What purports to be a copy of that general demurrer is attached to the affidavit.
We have no reason to doubt counsel's allegations but we are bound by the record and that is not to be enlarged by supplemental material which neither the trial court, acting within its jurisdiction, nor we, acting within ours, have ordered incorporated in it. Howard v. Howard, Wis., 1955, 69 N.W.2d 493. The record before us contains no general demurrer and the order which overrules a demurrer of some sort contains nothing to indicate that the demurrer which it overruled was a general one. On such a record we are unable to say that the trial court was in error in overruling whatever demurrer it was then considering. Hence, that part of its order must be affirmed.
When we take up the appeal from the part of the order which grants the temporary injunction, the sufficiency of the complaint immediately becomes material for if it appears there that the plaintiff is not entitled to the permanent injunction which his complaint demands the court ought not to give him the same relief temporarily.
'* * * Where the issuance of a preliminary injunction would have the effect of granting all the relief that could be obtained by a rinal decree and would practically dispose of the whole case, ordinarily it will not be granted, unless complainant's right to relief is clear.' 43 C.J.S., Injunctions, § 17, p. 428.
'The propriety of an injunction pendente lite depends upon the showing of a reasonable probability of plaintiff's ultimate success, * * *.' Halsey, Stuart & Co. v. Public Service Comm., 1933, 212 Wis. 184, 196, 248 N.W. 458, 462; Welch v. Chippewa Sales Co., 1948, 252 Wis. 166, 168, 31 N.W.2d 170.
The contention of the complaint is that plaintiff has established an exclusive right to the use of the term Handi-Horse as a trade-mark to identify an adjustable saw horse which he makes and sells. It is obvious that the term is intended to and does describe the use and virtues of the article to which it is applied. As such it is not eligible for protection as a trade-mark. Such words as are merely descriptive of the kind, nature, character or quality of the goods cannot be exclusively appropriated and protected as a trade-mark. Listman Mill Co. v. William Listman Milling Co., 1894, 88 Wis. 334, 340, 60 N.W. 261.
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