La Croix v. May

15 F. 236

Opinion

Wallace, J.

The facts alleged in the complainant’s bill entitle .him to an injunction restraining defendants from the use of his trademark, irrespective of tlie lights which he acquired by the registration of his trade-mark under the act of congress of March 3, 1881. Taylor v. Carpenter, 3 Story, 458; 2 Wood. & M. 1; Taylor v. Carpenter, 11 Paige, 296. The fact that complainant is an alien does not affect his right of property in a trade-mark; but that fact, as it establishes the requisite diversity of citizenship between the parties to confer jurisdiction upon this court, is indispensable to the cause of action alleged.

The act of congress fortifies the common-law light to a trade-mark by conferring a statutory title upon the owner; but, as was said of a former act, (The Trade-mark Cases, 100 U. S. 82,) “property in trademarks does not derive its existence from an act of congress.” The present act does not abridge or qualify the common-law right, but, by the express term of section 10, preserves it intact.

The theory of the demurrer is that the complainant’s statutory title upon the allegations of the bill is invalid. It is not necessary to decide the questions raised, because, as the demurrer is to the whole bill, the bill is sufficient if all the allegations concerning a registration of the trade-mark were eliminated.

• Demurrer is overruled.

See Barton v. Stratton, 12 Fed. Rep. 696, and note, 704, and Shaw Stocking Co. v. Mack, Id. 707, and note, 717