Cinch Products, Inc. v. Cinch Co.

9 F.R.D. 314, 82 U.S.P.Q. (BNA) 263, 1949 U.S. Dist. LEXIS 3208

• Court: District Court, W.D. Missouri
• Decided: August 1, 1949
• Docket: No. 5421
• Status: Published

Opinion

REEVES, Chief Judge.

The motion to dismiss in the above cause was filed on December 18, 1948. From time to time the plaintiff has procured extensions of time to reply to said motion or to submit authorities in opposition thereto, but no such memorandum in opposition has been filed. The last extension was until July 1, 1949.

The motion raises two grounds for dismissal; first, that the name of the defendant is wrong. It is asserted that there is no such defendant as “The Cinch Co., Inc.” Moreover, it is averred that the place where it is claimed the defendant did business is in error.

In addition to these alleged defects in process, it is further charged that the petition or complaint itself does not state a valid cause of action under the trademark law.

An examination of the complaint shows that the complaint is vague and uncertain as to whether the defendant has actually infringed plaintiff’s trademark and whether it had acquired rights antedating the rights asserted by the defendant.

In view of the above, it is ordered that the plaintiff amend its petition so as to show the correct name and location of the defendant, and then to amend by conforming to the rules requiring a statement of the use by the defendant of a tradename definitely infringing the registered trademark of the plaintiff under circumstances of an actual trespass on the trademark rights of the plaintiff.

Unless such an amendment be made and filed within 20 days from the date of this order, the motion to dismiss will be sustained and the complaint dismissed.