In re Vintschger

50 F. 459, 1892 U.S. App. LEXIS 1743

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: April 15, 1892
• Status: Published

Opinion

Lacomue, Circuit Judge.

Under the provisions of section 7 of the tariff act of October 1, 1890, the question whether a domestic manufacturer has adopted a name or trade-mark, and whether any articles of imported merchandise do copy or simulate such name or trade-mark, are to be determined, in the first instance, by the administrative officers to whom the execution of the tariff laws is intrusted. The provision of th.e same section that a record shall be kept in the treasury department, describing such trade-marks, does not make that record conclusive evidence of tire fact that the person who “may require his name and residence and a description of his trade-marks to be recorded,” is a domestic manufacturer, or has any trade-mark. The record hook is, in the language of the statute, but an “aid” to the customs officers, and the prohibition is directed only against articles which copy or simulate the genuine trade-marks of bona fide domestic manufacturers. Whether the decision of the proper bustoms officers that any particular import is within tbe prohibition is roviéwable in the courts, and, if so, in what way it may be presented for review, is not now' before this court. This application is for a mandamus to compel the collector to examine into the facts, and decade whether entry should be refused or not, and it is abundantly settled by authority that the power to issue a writ of mandamus as an original and independent proceeding-does not belong to the United Btales circuit courts. Bath Co. v. Amy, 13 Wall. 244.

Motion denied.