O. & W. Thum Co. v. A.K. Ackerman Co.

• Decision Date: 07 January 1919
• Docket Number: 3161.
• Citation: 257 F. 394
• Parties: O. & W. THUM CO. v. A. K. ACKERMAN CO.
• Court: U.S. Court of Appeals — Sixth Circuit

257 F. 394

O. & W. THUM CO. v. A. K. ACKERMAN CO.

No. 3161.

United States Court of Appeals, Sixth Circuit.

January 7, 1919

This is an appeal from the decree entered in the court below upon mandate issued pursuant to opinion rendered, August 1, 1917 in the two cases of the present appellant against Dickinson and the Ackerman Company, respectively, which were commenced in separate jurisdictions and subsequently heard together in this court, as explained in 245 Fed.at page 610, 158 C.C.A 37. The facts then pertinent to the cases and the reasons for the conclusions reached appear in that opinion, and a petition for writ of certiorari was denied in each case. 246 U.S. 664, 38 Sup.Ct. 334, 62 L.Ed. 928. The defendants in those cases, on November 26, 1917, presented to the court below a joint petition, bearing the titles of both the original cases, specifying the courts in which the cases had been brought, one in Michigan and the other in Ohio, and addressed to the 'District Courts of the United States'; but it does not appear whether a similar petition was filed in the District Court for the Western District of Michigan. This joint petition, after setting out steps previously taken in this court, in substance states that the season of manufacture of sticky fly paper for the year 1918 was then at hand, and that it was necessary for the petitioner Dickinson to proceed with such manufacture at once; that Dickinson had caused to be prepared certain photographs, submitted with the petition, showing the name under which he proposed to continue his business and the name of the commodity manufactured by him, as well as the design which he proposed to use-- presumably in the introduction and sale of his product. The petition further states that the business name so proposed would serve 'effectually to qualify and explain' the trade-name Dickinson had previously used and 'to distinguish' it from the name of the present appellant, and that the name so to be given to his commodity would serve 'unmistakably to differentiate his product from plaintiff's,' the appellant's and prays (a) approval of the trade-name, the name of his commodity, and the design so submitted, and (b) an order fixing amount of bond required as a condition to permitting the sale of finished stock theretofore manufactured by Dickinson and bearing the names and marks in issue in appellant's former appeals.

In our former opinion certain questions concerning the further use of Dickinson's trade-name and of the term he applied to his product were referred to the trial judge for determination (245 Fed.at page 627, 628, 158 C.C.A. 37); and the method adopted by the joint petitioners to present the issues involved in these questions was fairly within the practice sanctioned by this court in Kalamazoo Loose-Leaf Binder Co. v. Proudfit Loose-Leaf Co. (243 F. 895, 156 C.C.A. 407). It does not appear that appellant responded to the petition by motion, answer, or other pleading. It is however, to be gathered from the contentions of counsel that the matters so referred to the trial judge were presented by both sides and heard in open court. In the assignments of error appellant sets up a number of objections to the decree, though in all material respects they are based on the conditions under which Dickinson is permitted by the decree to continue the use of his former trade name and of the term ('Sticky') he had applied to his commodity.

Fred L. Chappell, of Kalamazoo, Mich., for appellant.

Willard F. Keeney, of Grand Rapids, Mich., for appellee.

Before WARRINGTON, Circuit Judge, and COCHRAN and HOLLISTER, District judges.

PER CURIAM.

We are constrained to believe the decree is right:

1. The decree adjudges that 'it is and will be an effective qualification and explanation' of the name under which 'Dickinson conducts his business if, in association with and immediately following' his trade-name, viz. "Grand Rapids Sticky Fly Paper Company,' * * * there be used' the name and word 'Albert G. Dickinson Proprietor,' provided such name and word 'be printed in type as large as that in which the words' of such trade-name 'are printed.' The change thus exacted is manifestly designed to break up the practice of concealing the real origin of the Dickinson product.

2. The decree also adjudges that 'it is an effective qualification and explanation of the word 'Sticky' if the same be used in connection with the fly paper or fly coils manufactured' by Dickinson 'as descriptive thereof, and not as heretofore as the name of a brand called 'Sticky," provided the word as thereafter used by Dickinson 'upon his fly sheets, cartons, cases, and crates, vended by defendant (Ackerman Company) shall not be printed...