Winsor v. Daumit, 9993.
| Decision Date | 08 November 1950 |
| Docket Number | No. 9993.,9993. |
| Parties | WINSOR v. DAUMIT et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James R. McKnight, Robert C. Comstock, Chicago, Ill., for appellant.
Casper William Ooms, George E. Frost, Chicago, Ill., for appellee.
Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.
On December 15, 1948, plaintiff filed suit to recover from Harry G. Daumit and Katherine G. Daumit, doing business as Kay Daumit, certain moneys claimed to be due on a contract entered into on June 16, 1945, by Harry G. Daumit and plaintiff whereby Daumit, a member of and in behalf of the copartnership, agreed to pay plaintiff three per cent of his gross sales of cosmetics and other toilet aids, marketed under the name "Forever Amber." Defendants Harry G. Daumit, Katherine G. Daumit and Kathryn, Inc., having assumed the contractual obligation, answered, and Kathryn, Inc., filed a counterclaim wherein it sought a declaratory judgment that plaintiff's copyright of her book title "Forever Amber" does not give her the right to use as a trade-mark the words "Forever Amber," on perfume and cosmetics; that Kathryn, Inc., is the true and lawful owner of the mark for all such purposes and that plaintiff's copyright registration is invalid. The court granted a motion to dismiss this counterclaim, whereupon defendant appealed to this court. We dismissed the appeal because the order was not appealable. Winsor v. Daumit, 7 Cir., 179 F.2d 475. Thereafter the District Court, in compliance with our suggestion, entered an appealable order and this appeal followed.
The contract recited that Winsor, author of the book "Forever Amber," had not theretofore authorized anyone to use her name, Kathleen Winsor or the words "Forever Amber" as a trade-name, trade-mark or otherwise in connection with the sales of perfume or cosmetics; that Daumit was engaged in making and selling perfume, cosmetics and other toilet articles under that trade-name; that Winsor acceded to Daumit's use of the words in advertising, marketing and selling his products, expressly assented to his adoption of the words "Forever Amber" as a trade-mark for his products, and agreed that the mark, as applied to cosmetics, should be his sole property. Winsor also gave Daumit the right to use her name, Kathleen Winsor, in advertising, marketing and promoting sales of toiletries, provided the advertising should not be "incompatible with her dignity and literary repute" and provided further that she should approve the minimum sales prices. She agreed to apply her "best efforts and abilities" toward promotion of the sales, to refrain from becoming affiliated in any manner with any one else engaged in production and sale of such articles, provided she should not be required to supply more than three weeks annually to such activity and provided further such period did not otherwise conflict or interfere with her other engagements and that the time given by her should not exceed two hours on any day or five days in any week. She was not to do any selling herself, or travel more than 250 miles from one city to another, or, in her appearances, have any connection with any advertising not conducted "in a dignified manner" or in a manner offensive to a person in her station in life.
In her complaint plaintiff averred the making of the contract, the payment of commissions thereunder from March 1, 1946, to January 31, 1948, and defendants' failure to pay thereafter. She alleged that she had complied with the obligations imposed upon her by the agreement and that defendant, Kathryn, Inc., having assumed the rights and liabilities of the copartnership, was liable for breach of contract and for all sums which had accrued since default had occurred. Thus it is apparent that plaintiff sued for breach of contract, that she averred performance of her obligations under the contract, namely: the use of her name and personal services in connection with the sale of the goods, and demanded payment. The complaint included no averment that defendants had infringed any copyright or trade-mark belonging to plaintiff but asserted only that they had broken the contract.
The court held that the counterclaim, which sought a declaratory judgment of invalidity of plaintiff's copyright "Forever Amber," as applied to cosmetics, failed to state a valid claim. Kathryn, Inc., defendant and counterclaimant, urges here that it did set forth a valid cause of action, that a justiciable...
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