Industrial Press v. W. R. C. Smith Pub. Co.

164 F. 842, 90 C.C.A. 604, 1908 U.S. App. LEXIS 4691

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 10, 1908
• Docket: No. 1,870
• Status: Published

Opinion

The following is the opinion of the Circuit Court, by

NEWMAN, District Judge:

The complaint does not, in my judgment, make by its bill, or by the trademark exhibited, a case of technical trade-mark.

Complainant may have a case for unfair business competition. _ The only language in the bill on this subject, however, seems to be insufficient. It is clear that the name “Southern Machinery” used by the defendant company, in order to make a case, must have been used with intent to deceive, the public and those who would be likely to patronize it. The only language in the bill tending in this direction is the following expression:

“And your orator complains that the use by the defendant of the title ‘Southern Machinery’ is calculated to deceive the public into the belief that the periodical so entitled ‘Southern Machinery’ is another special edition of your orator’s periodical ‘Machinery.’ ”

“Calculated to deceive” does not mean or include Intent to deceive. There should be a clear averment that the name is used with intent to deceive in the respects claimed in the bill.

Complainant’s counsel has requested permission, if the court should believe the language insufficient, to amend the bill in this respect. If the complainant shall, within 10 days, amend its bill so as to meet the objection stated, the demurrer will be overruled; otherwise the demurrer will be sustained.

Before PARDEE and SHELBY, Circuit Judges, and BURNS, District Judge.

PER CURIAM. We concur in the reasoning and conclusion of the judge a quo, and therefore the decree of the Circuit Court is affirmed.