Hercules Powder Co. v. Newton
Court of Appeals for the Second Circuit
Appeal from the District Court of the United States for the Southern District of New York. Suit by the Hercules Powder Company against James T. Newton, as Commissioner of Patents. Decree for defendant, and complainant appeals. The bill is brought under section 4915, It. S. (Comp. St. § 9460), and section 9 of the Trade-Mark Act of 1905 (33 Stat. 727 [Comp.
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Appeal from the District Court of the United States for the Southern District of New York. Suit by the Hercules Powder Company against James T. Newton, as Commissioner of Patents. Decree for defendant, and complainant appeals. The bill is brought under section 4915, It. S. (Comp. St. § 9460), and section 9 of the Trade-Mark Act of 1905 (33 Stat. 727 [Comp. St. § 9494]), to procure a declaration that plaintiff is entitled to have defendant register under the act its trade-mark of “Infallible” for smokeless sporting powder. Diversity of citizenship exists between the parties; therefore,…
1Opinion of the CourtHough, Circuit Judge
(after stating the facts as above). [1] The issue tendered by the pleadings herein is shown by an extract from the answer, viz.:
“Defendant denies that the word ‘Infallible’ is registrable as a trade-mark for smokeless powder under the act, * * * and avers that it is * * * precluded from registration by said act.”
Thus the point is, not that registration ought not to be granted because of some proven fact, but that it cannot lawfully be conferred because the statute forbids.
Plaintiff has, we think, somewhat complicated the issue by pressing upon us as a fact proven beyond doubt that dealers and…
2Cases cited24 opinions
- Hamilton-Brown Shoe Co. v. Wolf Brothers & Co.Supreme Court of the United States · 1916
- Florence Mfg. Co. v. J. C. Dowd & Co.Court of Appeals for the Second Circuit · 1910
- Aunt Jemima Mills Co. v. Rigney & Co.Court of Appeals for the Second Circuit · 1917
- Standard Paint Co. v. Trinidad Asphalt Manufacturing Co.Supreme Court of the United States · 1911
- Thaddeus Davids Co. v. Davids Manufacturing Co.Supreme Court of the United States · 1914
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3Cited by15 opinions
- Rosenberg Bros. & Co. v. ElliottCourt of Appeals for the Third Circuit · 1925
- Wisconsin Electric Co. v. Dumore Co.Court of Appeals for the Sixth Circuit · 1929
- Coty, Inc. v. Parfums De Grande Luxe, Inc.Court of Appeals for the Second Circuit · 1924
- Nieman v. Plough Chemical Co.Court of Appeals for the Sixth Circuit · 1927
- In Re Plymouth Motor CorporationCourt of Customs and Patent Appeals · 1931
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