Folmer Graflex Corp. v. Graphic Photo Service

45 F. Supp. 749, 53 U.S.P.Q. (BNA) 682, 1942 U.S. Dist. LEXIS 2623

Opinion

FORD, District Judge.

Concluding that I have not given sufficient consideration to such cases as Coca-Cola Co. v. Koke Company of America et al., 254 U.S. 143, 41 S.Ct. 113, 65 L.Ed. 189, and Coty, Inc., v. Le Blume Import Co., Inc., 2 Cir., 292 F. 264, in holding the plaintiff’s trade-mark, in order to acquire a secondary meaning, must indicate to the purchasing public the manufacturer as distinguished from indicating a common source of the goods, and, in the interests of justice, the judgment entered in this action on March 30, 1942, is opened and a new trial is granted wherein additional testimony will be taken with respect to two issues: (1) The question of secondary meaning, and (2) the question as to whether the defendants are competitors of the plaintiff.

Right is reserved under Rule 59(a) (2), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to amend the findings of fact and conclusions of law or make new findings of fact and conclusions of law.

Thq case will be assigned on my first jury-waived list in the Fall.