Esquire, Inc. v. Lewis

16 F.R.D. 246, 103 U.S.P.Q. (BNA) 363, 1954 U.S. Dist. LEXIS 4873

• Court: District Court, S.D. New York
• Decided: July 27, 1954
• Status: Published

Opinion

DAWSON, District Judge.

This is a motion for an order requiring plaintiff (1) to serve an amended complaint which will separately state and number each claim for relief; and (2) requiring plaintiff to make its complaint more definite and certain.

The amended complaint alleges that it. is “a suit for unfair trading and for infringement of a trade-mark registered in the United States Patent Office”. It is not clear from the amended complaint, which of the allegations relate to the charge of trade-mark infringement and which relate to the charge of unfair competition. The trade-mark is not described, nor is its registration number given.

The issues with reference to infringement of a registered trade-mark may well be quite different from those relating to charges of unfair competition or the unfair use of • an unregistered trade-name. A clear presentation of the issues would seem to indicate that the claims for infringement of the registered trade-mark and the claims for unfair competition should be separately stated. Rule 10(b), Federal Rules of Civil Procedure, 28 U.S.C.A. See Italian Swiss Colony v. Ambrose & Co., Limited, D.C.Colo.1951, 94 F.Supp. 896; Brooks Bros. v. Brooks Clothing of California, D.C.Calif.1954, 60 F.Supp. 442, affirmed 9 Cir., 158 F.2d 798, certiorari denied 331 U.S. 824, 67 S.Ct. 1315, 91 L.Ed. 1840.

It is, therefore, ordered that the-plaintiff amend its complaint separately to state the causes of action for infringement of a registered trade-mark and for unfair competition. The cause of action for infringement of a registered trademark shall identify the trade-mark and its registration.

The balance of the motion which seeks to make the complaint more definite and certain is denied.