H. C. Cole & Co. v. William Lea & Sons Co.

35 App. D.C. 355, 1910 U.S. App. LEXIS 5908

• Court: District of Columbia Court of Appeals
• Decided: May 26, 1910
• Docket: No. 638
• Status: Published

Opinion

Mr. Justice Hobb

delivered the opinion of the Court:

This is a trademark interference proceeding. Appellant’s mark, “P P P G,” ivas registered September 25th, 1883, No. f0,!5,99.: ,. The-,appellee registered its mark, “P P P,” March-23d,-. 1886, No. 13,128. . It now seeks registration under the act of 1905.

The' Examiner • of Interferences found that “the testimony establishes, in a fairly satisfactory manner, that the predecessor of each party was using its mark during at least a portion of the year 1855, and that such use has been continued to date . without loss by either party, or its predecessor, of the right of use, if such right ever obtained.” The Examiner found, however, that neither party was able satisfactorily to establish its prior right of use, and hence “that neither should have the right to exclude the other.” The Commissioner, after a careful review of applicant’s evidence relating to adoption and use-of its mark prior to 1855, the earliest date to which appellant is entitled, held that “the William Lea & Sons Company adopted and used its mark ‘F F F’ prior to any date of adoption and use which, can be accorded to H. C. Cole & Company.”

Preston Lea, whose father was a member of the firm of T'atnall -& Lea, originators of appellee’s mark, first became connected with that firm as a clerk in 1858. He produced old account books which he testified were used in the business of Tatnall & Lea and other predecessors of appellee. The entries in the first book he was unable to identify, since they were made prior to his connection with the firm. The entries in the other books, however, he was able to identify. In the oldest book are entries under date of Jan. 31st, 1853, showing shipments of about 2,000 barrels “3 F Flour.” The other books contained similar entries, but need not be considered here. The entries in this old book were properly received in evidence. The book was more than thirty years old, was found in proper custody, and was free from all grounds of suspicion. It therefore proved itself. Applegate v. Lexington & C. County Min. Co. 117 U. S. 255, 29 L. ed. 892, 6 Sup. Ct. Rep. 742; Hamerschlag v. Duryea, 172 N. Y. 622, 65 N. E. 1117; Bullon v. Michel, 2 Price, 399; Wynne v. Tyrwhitt, 4 Barn. & Ald. 376. In the circumstances of this case, such entries are to be considered a part of the res gestee, rather than as a mere xécitation of past events. Such is the force of the cases cited. ‘ ' ‘

Frank Cloud, a retired miller, seventy-eight years old, and an entirely disinterested witness, testified that the firm of Tatnall & Lea, for whom he then worked, used the trademark “F F F” upon flour in 1852 and thereafter, and that he had done much branding himself. The witness was asked what caused him to remember the date 1852, and replied: “The year that I got the situation at Stanton mills the mills were under repair, and that is the time the brand whs started; I cannot remember the month.” The entries in the old book, sirpplemented by the testimony of this witness, we think fully justified the conclusion reached by the Commissioner.

We have eliminated from our consideration the testimony elicited by leading questions, the record showing that timely objection was noted. American Stove Co. v. Detroit Stove Works, 31 App. D. C. 304. It is unnecessary to notice other objections raised.

Tbe decision of tbe Commissioner is affirmed, and tbe clerk will certify tbis opinion, as by law required. A'fjirmed.

Mr. Justice Barnard, of tbe supreme court of tbe District of Columbia, sat with tbe court in tbe bearing and determination of tbis appeal, in tbe absence of Mr. Chief Justice Shepard.