J K SALES CO., v. GEMEX, INC., 166 F.2d 569 (1st Cir. 1948)

J K SALES CO., Inc. v. GEMEX, Inc.

No. 4300.Circuit Court of Appeals, First Circuit.
February 27, 1948.

Page 570

Appeal from the District Court of the United States for the District of Rhode Island; John P. Hartigan, Judge.

Action by Gemex, Inc., against J K Sales Company, Inc., for unfair competition and infringement of unregistered trademarks. From a judgment granting an injunction, 76 F. Supp. 150, defendant appeals.

Judgment affirmed.

Nathaniel Frucht, of Providence, R.I. (Carl B. Everberg, of Woburn, Mass., on the brief), for appellant.

John C. Blair, of New York City (F. William Andres, of Boston, Mass., and William C. Conner and Blair, Curtis Hayward, all of New York City, on the brief), for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

PER CURIAM.

This is an appeal from a judgment entered for the plaintiff in an action for unfair competition, and for infringement of unregistered trade marks. Federal jurisdiction rests upon diversity of citizenship and amount in controversy.

At almost the same time, by pure coincidence we are told, the parties hit upon the same marks for the same products — the names “Baron” and “Baroness” for men’s and women’s wrist watch bracelets. The court below found that the plaintiff’s use of the marks on bracelets it sold to the trade had ante-dated the defendant’s similar use of them, although by only a few days with respect to use of the mark “Baron,” that the plainitiff’s use of the marks has been continuous and substantial, and that its business in bracelets so marked has become national in scope. On the basis of these findings the court below issued the injunction prayed for by the plaintiff and the defendant thereupon took this appeal.

An examination of the record discloses that the findings made by the District Court rest upon substantial oral and documentary evidence and inferences reasonably and logically drawn therefrom. These findings therefore cannot be assailed successfully in this court. Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. And the findings made below support the conclusion there reached even though the plaintiff’s use of the marks in the channels of trade, particularly the use of one of them, preceded the defendant’s use by only a very short period of time. Columbia Mill Co. v. Alcorn, 150 U.S. 460, 463, 464, 14 S.Ct. 151, 37 L.Ed. 1144; Walter Baker Co. v. Delapenha, C.C., 160 F. 746, 749; Waldes v. International Mfrs’ Agency, Inc., D.C., 237 F. 502, 505.

The judgment of the District Court is affirmed.

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