« AnteriorContinuar »
his attorney, complains of G. H., defendant, of the said District, of a plea of trespass on the case : For that whereas he, the said plaintiff, for divers years before, and at the time of the committing of the grievances hereafter next mentioned, did manufacture, vend, and sell, and continue to manufacture, vend, and sell, and still does continue to manufacture, vend, and sell for profit, divers large numbers of a certain reaping-machine called the “ Harvest Victor," which said machine the said plaintiff was then, and still is, used and accustomed to sell, each machine bearing a representation of “ Time," with a scythe, and the words “Harvest Victor” in raised characters, as his trade-mark therefor. And the said plaintiff being then domiciled within the United States, did cause to be recorded, in the Patent Office of the United States, a statement of his name, residence, and place of business; the class of merchandise and the particular description of goods comprised in such class, by which the aforementioned trade-mark had been appropriated as aforesaid; a description of the said trade-mark itself, with fac-similes thereof, and the mode in which it has been applied and used; and the length of time during which the said trade-mark had been used; and having made a payment of a fee of twenty-five dollars, and complied with the regulations prescribed in such case by the Commissioner of Patents; and having filed a declaration under the oath of this plaintiff, to the effect that he then had a right to the use of the said trademark, and that no other person, firm, or corporation, had the right to such use, either in the identical form or having such near resemblance thereto as might be calculated to deceive, and that the description and fac-similes presented by him for record truly represented the trade-mark sought to be protected, therefore he obtained a certificate of registry of said trade-mark under the seal of the said Patent Office, certified by the Commissioner of Patents, bearing date the day of ,187 , in due form of law, as by reference to said certificate and a schedule thereto annexed will fully appear.
And the said plaintiff further says that before and at the time of committing the grievances hereinafter next mentioned, he had gained and acquired great fame and reputation with the public on account of the excellent properties of the said reaping-machine, so
1 Whether a full compliance with all the requirements of the statute in regard to registration need to be alleged has not been decided by any court. Perhaps it would be sufficient to simply allege the fact of due registration, evidenced by the certificate of the Patent Office, as regularity would be presumed. At any rate, the exemplification of the record would demonstrate the matter.
by him manufactured, vended, and sold, whereby the said plaintiff daily acquired and obtained great gain and profit. Yet the said defendant, well kņowing the premises, but contriving to injure the said plaintiff in his said sale of said reaping-machine, and to deprive him of the great gains and profits which he the said plaintiff would otherwise have acquired by manufacturing, vending, and selling the said machine, did, on the day of eighteen hundred and seventy , and at divers other times before and afterwards, and before the commencement of this suit, unlawfully and wrongfully, injuriously, deceitfully, and fraudulently, against the will and without the license or consent of the said plaintiff, manufacture and make, and cause to be manufactured and made, divers, to wit, 100 reaping-machines, marked in imitation of, and bearing an almost exact copy of the said plaintiff's trade-mark, to wit, the said representation of “ Time," with a scythe, and the words “Harvest Victor” in raised characters, as hereinbefore set forth, in order to denote that the reaping-machine of the said defendant was the genuine reaping-machine manufactured, vended, and sold by the said plaintiff'; and did knowingly, wrongfully, injuriously, deceitfully, and fraudulently vend and sell for his own lucre and gain the said last-mentioned reaping-machines; by reason of which said premises the said plaintiff has been greatly injured and deprived of great profit and advantage, in being hindered and prevented by the said defendant from selling, vending, and disposing of divers large numbers, to wit, 100 of the said reaping-machines, which the said plaintiff would otherwise have sold, vended, and disposed of, and has thereby sustained actual damage to the amount of two thousand dollars.
Yet the said defendant, though requested, hath never paid the same, or any part thereof, to the said plaintiff, but hath refused, and yet refuses so to do, and therefore the plaintiff brings this suit.
MERWIN HALLIBOW, Attorney, and of Counsel for Plaintiff.
[ Title of the suit.]
The defendant will please to take notice that the within is a copy of a declaration filed with the clerk of the United States Circuit Court for the District of at and that the defendant must plead thereto within twenty days after service hereof on him, or judgment will go by default. Dated 187 .
Plaintiff's Attorney. To G. H., the above-named Defendant,
(Or this.) [ Title of the suit.]
The defendant will please to take notice that a rule has been entered in this suit with the clerk of this court, at his office, in the city of , requiring the defendant to plead to the declaration filed in this action, with a copy whereof he is hereby served, within twenty days after service of a copy thereof and notice of said rule, or judgment. Dated 187 .
Attorney for Plaintiff. To G. H., Defendant.
AFFIDAVIT OF SERVICE OF THE DECLARATION.
L. M., being duly sworn, says, that on the day of ,187 , he personally served on the defendant G. H. within named, a copy of the within declaration and notice of rule to plead as herein indorsed (or, hereto annexed).
L. M. Sworn to before me, this day of ,187 .
No. 3. — GENERAL DEMURRER TO DECLARATION. [ Title of the cause, as in Form No. 1.]
And the said defendant, by G. G., his attorney, comes and defends the wrong or injury, when, &c., and says that the said declaration and the matters therein contained, in manner and form as the same are above stated and set forth, are not sufficient in law for the said plaintiff to have or maintain his aforesaid action thereof against the defendant, and that he the said defendant is not bound by law to answer the same.
And this he is ready to verify; wherefore, by reason of the insufficiency of the said declaration in this behalf, the said defendant prays judgment, and that the said plaintiff may be barred from having or maintaining his aforesaid action thereof against him, &c.
G. G., Attorney for Defendant, 1 There may be several objections to the declaration, as, for example, that it shows no trade mark in the legal sense, or does not set forth facts of any kind sufficient to constitute a cause of action. In Barrows v. Knight (6 R. I. 434), the defendant took the ground that the plaintiff had no right to appropriate the name of a famous deceased person; and that, even if he had, it was not plainly set forth that the defendant had infringed thereon.
PLEA IN ABATEMENT TO TAE JURISDICTION.
[ Title of the cause, as in Form No. 1.]
And the said defendant C. D., by G. G. his attorney (or in his own proper person], comes and defends the wrong and injury when [&c.], and says that the court here ought not to take cognizance of, or sustain the action aforesaid, because he says that the cause of action aforesaid, if any accrued to the said plaintiff, accrued to him at Jersey City, within the jurisdiction of the United States Circuit for the District of New Jersey, and not within the jurisdiction of this court, and this he is ready to verify: wherefore he prays judgment, if the court here will take further cognizance of, or sustain the action aforesaid, &c.?
G. G., Attorney for Defendant.
[Or, C. D., Defendant.]
AFFIDAVIT. - District of
C. D., the above-named defendant, being duly sworn, says, that the above plea is true in substance, and matter of fact.
C. D. Sworn to before me this day of ,187 .
REPLICATION TO THE FOREGOING PLEA.
[ Title of the cause, as in Form No. 1.]
And the said plaintiff says that the court here ought to take further cognizance of, and sustain his action aforesaid against the said defendant, because the said plaintiff says that the cause of action aforesaid did arise within the jurisdiction of this court now here, to wit: at [name the place], as he hath above in declaring alleged; and this he prays may be inquired of by the country, and the said defendant doth the like, &c.
M. H., Attorney for Plaintiff.
I When both parties are citizens of the same State, and the action is brought for vindication of a common-law right to the use of a trade-mark, this plea is available. But if the action is brought under the provisions of the Trade-mark Act of July 8, 1870, the subject matter gives jurisdiction, as in a patent or copyright case.
NOTICE OF MOTION FOR LEAVE TO AMEND. [Title of the cause, as in Form No. 1.]
Sir, — Please to take notice that on the affidavit, with a copy whereof you are herewith served, a motion will be made before the Circuit Court of the United States for the District of , before one of the judges of the said court, on the day of
,187 , at o'clock in the noon, or as soon thereafter as counsel can be heard, that the plaintiff [or defendant] in this cause have leave to amend the declaration (or other pleading] filed herein, by inserting (or striking out, or substituting, as the case may be, specifying the amendment proposed], on such terms as the said court may direct. Dated ,187 .
M. H., Attorney for, &c. To N. 0. P., Esq., Attorney for, &c.
No. 4.- COMPLAINT AT COMMON LAW IN STATE COURTS.
By and against Partners. A. B. and C. D., Plaintiffs, ).
against E. F. and G. H., Defendants. )
The plaintiffs, A. B. and C. D., partners, doing business under the firm-name of A. B. & Co., complain of E. F. and G. H., doing business under the firm-name of F. & H., and allege:
That the said plaintiffs, before and at the time of the committing of the grievances by the said E. F. and G. H., as partners aforesaid, as hereinafter mentioned, did manufacture, vend, and sell, and continue to manufacture, vend, and sell, divers large quantities of lead-pencils for the use of artists and others, which said lead-pencils were each stamped in gold with a device representing a spread eagle with a star over its head, and the letters “ A. B.” underneath the said eagle, which said device when so applied constituted the exclusive trade-mark of the said plaintiffs, to indicate to purchasers and the public that the said lead-pencils were the product and merchandise of the said plaintiffs, and the said lead-pencils when offered for sale in large quantities were done up in packages of dozens from one dozen up to