The opinion of the court was delivered by: BARD
The plaintiff corporation has instituted this action to obtain injunctive protection and other relief against the allegedly unlawful use of the word "Dougherty's" by the defendant in the sale of whiskey. The defendant denies violation of any rights of the plaintiff and requests affirmative relief in the form of a decree restraining the plaintiff from interfering with his business, a decision defining all the rights of the parties, an award of damages, and an accounting of profits.
I make the following special
1. The plaintiff is a corporation organized and existing under the laws of the State of Maryland, having been incorporated in 1925.
2. The defendant is an individual, a citizen of the Unitecd States and a resident of Philadelphia, Pennsylvania.
3. The matter in controversy exceeds, exclusive of interest and costs, the sum of three thousand dollars ($3,000).
4. The word "Dougherty's" was used in the manufacture and sale of whiskey for many years by James A. Dougherty, then by a later formed family firm, and also by another firm prior to the incorporation of the plaintiff, present owner of the business.
5. The manufacture of whiskey was discontinued in 1918 when the distillery was dismantled by the firm then operating the business.
6. The plaintiff corporation, operating at the same site occupied by James A. Dougherty and later firms, has used the name "Dougherty's" in the sale of straight whiskeys since 1925, the year of its incorporation.
7. The name "Dougherty's" dominates the front labels on some of the plaintiff's whiskeys, and appears on all.
8. The plaintiff sold 3,250 cases of straight whiskey to the Pennsylvania Liquor Control Board in 1933, which liquor was resold by the board during subsequent years until the supply was exhausted in 1937.
9. The plaintiff has made no sales of straight whiskey to the Pennsylvania Liquor Control Board since 1935 for resale to the public.
10. The plaintiff has made sales throughout the United States in general since repeal of prohibition.
11. The plaintiff did not sell any blended whiskey prior to 1940.
12. The defendant began to sell blended whiskey under the name "Dougherty's" in August, 1939, with knowledge that there was another business using the word ...