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JESSAR MANUFACTURING CORPORATION v. BERLIN (01/06/55)

January 6, 1955

JESSAR MANUFACTURING CORPORATION
v.
BERLIN, APPELLANT.



Appeal, No. 308, Jan. T., 1954, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1954, in Equity, No. 10248, in case of Jessar Manufacturing Corporation v. Irving Berlin and Dennis Berlin, trading as Dennis Mitchell Industries. Order reversed.

COUNSEL

Harry Langsam, with him Simon Shapiro, for appellants.

Sylvan M. Cohen, with him Louis Samuel Fine and Cohen & Cohen, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 380 Pa. Page 454]

OPINION BY MR. JUSTICE BELL

Plaintiff sought and obtained a decree in equity restraining defendants from manufacturing and selling baby auto seats which had a horse's head on the front and reins for the child to hold.

Plaintiff is a manufacturer of baby auto seats and other toys. Early in 1954 it brought out and marketed the above-described baby auto seats. Defendants copied this product and marketed it under their own name, which was in no way similar to plaintiff's name, claiming they had a legal right to do so, since plaintiff's invention was not patented and had not acquired a special or secondary meaning. The Chancellor found that defendant's actions amounted to unfair competition and issued a preliminary injunction.

At first blush it seems shocking that any person can copy or imitate an article made, manufactured or sold by another. However, on analysis it is clear that

[ 380 Pa. Page 455]

    copying the ideas and unpatented commercial articles of others has contributed tremendously to the progress and prosperity of the United States and is in the best interest of the vast majority of the people, since it restricts monopoly and enables the people to purchase useful or necessary articles at law competitive prices. Moreover, the manufacturer of an article of general use, or the inventor of a trade-mark or a trade name is not without protection. He can have his article, trade-mark or trade name patented or copyrighted, in which event he will be protected against infringement; furthermore, he can and will be protected if his article, trade-mark or trade name has acquired a so-called special or secondary meaning.

In this case plaintiff points out that defendants could have used a lion's head or a zebra's head or a donkey's head or any other animal's head instead of a horse's head. Why, may we ask, should plaintiff have the sole and exclusive right to the use of a horse's head or to the use of a baby seat or to the use of a combination of both of these articles which are of such general usage that - unless they are patented or have acquired a secondary meaning - they rightfully belong to the general public.

The general principles dealing with trade names and trade-marks have recently been considered by this Court in Peters v. Machikas, 378 Pa. 52, 105 A.2d 708; KoolVent Metal Awaning Corp. v. Price, 368 Pa. 528, 84 A.2d 296; and in Goebel Brewing Co. v. Esslingers, Inc., 373 Pa. 334, 95 A.2d 523.

In Peters v. Machikas, 378 Pa., supra, upon a complaint by plaintiff trading under the fictitious name of Majestic Restaurant we reversed the Chancellor and enjoined defendants from using the trade name of Majestic Grill. The Court in its opinion said ...


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