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OLIN MATHIESON CHEM. CORP. v. COHEN

September 18, 1964

OLIN MATHIESON CHEMICAL CORPORATION, New York, New York
v.
Herman J. COHEN, an individual trading as J.B.N. Sales, Philadelphia, Pennsylvania



The opinion of the court was delivered by: LORD, JR.

FINDINGS OF FACT

 1. OLIN MATHIESON CHEMICAL CORPORATION, Plaintiff, (hereinafter called 'Plaintiff') is a corporation duly organized and existing under the laws of the State of Virginia, maintaining an office for the conduct of business at 275 Winchester Avenue, New Haven, Connecticut, and its principal place of business in New York, New York, and its business consists, among other things, of the distribution and sale in both interstate and intrastate commerce, in Pennsylvania, of firearms, ammunition, related equipment, and other commodities under Plaintiff's trademark 'WINCHESTER', and various other trademarks, brands and names associated with Plaintiff.

 2. HERMAN J. COHEN, Defendant (hereinafter called 'Defendant'), is an individual trading as 'J.B. N. SALES', maintaining places of business at 5707 Warrington Avenue, Philadelphia, Philadelphia County, and elsewhere in Pennsylvania, which business consists, among other things, of selling at retail in Pennsylvania products bearing Plaintiff's name, brands and trademarks.

 3. This action is brought to restrain alleged unfair competition arising under the Pennsylvania Fair Trade Act, the Act of June 5, 1935, P.L. 266, Sections 1 and 2 as amended (73 P.S. §§ 7 and 8) and sanctioned by the Miller-Tydings Act, 15 U.S.C.A. § 1 and McGuire Act, 15 U.S.C.A § 45.

 4. The matter in controversy exceeds, exclusive of interest and costs, the sum of Ten Thousand Dollars ($ 10,000), being the goodwill pertaining to Plaintiff's business, especially that portion based upon Plaintiff's rights under certain lawful agreements made pursuant to the Fair Trade Act of Pennsylvania.

 5. Plaintiff's products, including products which are sold under its trademark and trade name, 'WINCHESTER', and various other trademarks, brands and names associated with Plaintiff, are all sold in substantial quantities to retail dealers throughout the Commonwealth of Pennsylvania, and are in turn resold by retail dealers to the public.

 6. Said trademark and trade name is the exclusive property of the Plaintiff, being registered in the United States Patent Office, and is now outstanding, validly subsisting, unrevoked and uncancelled, and Plaintiff is the owner thereof.

 7. The products bearing the said trademark and trade name have a good reputation and standing among the public generally, including the purchasing public throughout the Commonwealth of Pennsylvania. Plaintiff has built up through the high quality of its products, together with extensive advertising, a good will appertaining to such products and to said trademark and trade name, with retailers and the purchasing public of Pennsylvania and elsewhere.

 8. In accordance with the provisions of the Pennsylvania Fair Trade Act (Act of June 5, 1935, P.L. 266, as amended), Plaintiff and Defendant, as of September 15, 1962, entered into a written agreement whereby Defendant agreed that the resale of the Plaintiff's products should be in accordance with the provisions of the Pennsylvania Fair Trade Act, and should not be below the stipulated retail price as set forth in price lists published by Plaintiff from time to time; and Defendant agreed not to advertise, offer for sale, or sell in Pennsylvania products of Plaintiff at prices less than the retail selling prices at that time stipulated therefor by Plaintiff.

 9. By letter, dated February 6, 1964, and sent by registered mail, postage prepaid, counsel for Plaintiff demanded that Defendant cease and desist from violating the provisions of the Pennsylvania Fair Trade Act by selling Plaintiff's products at prices less than those stipulated in Plaintiff's published price lists then in effect.

 11. In selling Plaintiff's products below Plaintiff's published stipulated retail prices as aforesaid, Defendant was not closing out its stock of goods for the purpose of discontinuing the sale of such products; said goods were not damaged or deteriorated in quality and sold with notice to the public thereof; nor were said sales made by an officer acting under orders of any court or in execution of any writ or distress.

 12. The amount of damages sustained by Plaintiff as a result of Defendant's conduct as above complained of cannot be ...


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