Dadirrian v. Guldian

80 F. 986, 1897 U.S. App. LEXIS 3031

• Court: U.S. Circuit Court for the District of New Jersey
• Decided: May 4, 1897
• Status: Published

Opinion

KIRKPATRICK, District Judge.

Markar G. Dadirrian, the complainant herein, having obtained on decree an injunction against Muggerditch Gullian, Albert Gullian, and Otto Heisenbuttel, trading as M. Gullian & Co., restraining them, their agents and servants, from using the trade-mark “Matzoon” as a label for a fermented milk preparation, asks leave by petition to file a supplemental bill for the purpose of making Senekerim Gullian, Taquhy Gullian, Nazar Gullian, and Reuben Gullian parties to his original suit. The reasons alleged in the petition are that, pending the suit against M. Gullian & 'Co., the said M. Gullian & Co. made an assignment and transfer of their business in preparing, putting up, selling, and offering for sale a liquid preparation of fermented milk to Taquhy Gullian, who is the wife of Senekerim Gullian, and the same was accepted by her with full knowledge of the pendency and object of the suit, and that subsequently the property was transferred to Senekerim Gullian, who had like knowledge. It does not appear that any claim was made by Dadirrian to the exclusive right to manufacture the fermented milk which he sold under the trade-mark of “Matzoon.” His only object in bringing the suit was to protect his right to use his trademark in connection with the manufactured article. He did not object to the manufacture and sale of fermented milk. That was a business in which any one might engage without hindrance from him, and therefore the sale of the utensils necessary to the carrying on of that legitimate business could not afford any ground for making the purchasers parties to a controversy which does not necessarily pertain to the business. It does not appear that M. Gullian & Co. undertook to convey to Taquhy Gullian any right to use the trade-mark “Matzoon,” which was the subject-matter of the suit, or that she ever made use of the word “Matzoon” in selling the product of her business; on the contrary, it is admitted that Taquhy, after the decree and injunction had been obtained by Dadirrian, changed its name to “Lebben.” Recently it is said that Senekerim Gullian has come into possession of the business and appliances so purchased by his wife, Taquhy, and that he is now engaged in manufacturing fermented milk, and is selling it under the name of “Matzoon,” but he does not claim to so call it by virtue of any right derived either from his wife, Taquhy, or M. Gullian & Co. The other persons named in the petition—Nazar Gullian and Reuben Gullian—were servants of M. Gullian & Co., and have ceased to be such. They are now in the employ of Senekerim. No other reason is advanced why they should be made parties except that they are the sons of Muggerditch Gullian, and live in the same house with him, and Senekerim, their brother. I have already held that Senekerim Gullian was carrying on this business on his own behalf, and in good faith, and that neither he nor his brothers, Nazar and Reuben, though once the servants of their father, Muggerditch, were bound, having ceased to be such servants, to obey the injunction granted in the suit to which they were not parties. They should not, more than other strangers, be in any way concluded by the decree, but be permitted to have their day in court to offer such defenses to their actions as they may be advised. The purchase by Senekerim of the utensils to manufacture the articles which he now offers for sale, even though -it were from M. G-ullian Sc Co. direct, cannot change his status or impair his rights. ' The injunction was issued, not to prevent the manufacture and sale of fermented milk, but to forbid the use of the trade-mark "Matzoon” as an aid in procuring purchasers. It is true that Senekerim is now using the prohibited word for that purpose, but he does not base his right upon any grant or transfer from M. Gullian Sc Co., the defendants, but upon the ground that Dadirrian, the complainant, has .no exclusive privilege to do so. Leave to file the supplemental bill is denied.