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HML CORP. v. GENERAL FOODS CORP.

January 6, 1965

HML CORPORATION
v.
GENERAL FOODS CORPORATION



The opinion of the court was delivered by: WOOD

This contract action was tried to the Court without a jury from December 7, 1964, to December 10, 1964. At the close of the plaintiff's evidence the defendant moved for an involuntary dismissal under Rule 41(b) which was granted by the Court. Therefore, in accordance with Rule 52(a) we find the following:

FINDINGS OF FACT

 1. The plaintiff, HML Corporation (HML) (formerly Lamaze Foods, Inc.) is a Pennsylvania corporation with its principal place of business located in Philadelphia, Pennsylvania.

 2. At the time of the institution of suit, January 5, 1962, HML was a food manufacturer.

 3. The defendant, General Foods Corporation (General Foods) is a Delaware Corporation with its principal place of business situated in White Plains, New York.

 4. The amount in controversy exceeds $ 10,000.00.

 5. Plaintiff's predecessor corporation prior to 1956 was the owner and registrant of the trademarks 'Cream Wipt' and 'SalaDream' covering certain food dressing products.

 6. In 1956 and 1957, General Foods adopted and used the trademark 'Dream Whip' which was a dessert topping mix.

 7. Litigation arose when the defendant attempted to register the trademark 'Dream Whip' with the United States Patent Office in 1956 and 1957.

 8. The plaintiff successfully opposed the defendant's application to register its trademark because of the likelihood that confusion in the trade would result. Cream Wipt Foods, Inc. v. General Foods Corporation, 278 F.2d 521, 47 CCPA 968 (1960).

 9. Thereafter, on September 14, 1960, plaintiff and defendant entered into two agreements to resolve the trademark dispute between them.

 10. The first agreement denominated herein as the 'Main Agreement', provided for the sale by the plaintiff to General Foods of the trademarks 'Cream Wipt' and 'SalaDream' together with the Good will of those trademarks and United States Patent No. 2,715,068 owned by plaintiff's president covering the production of a salad dressing containing milk solids and cream.

 11. Section 10 of the Main Agreement provided for a closing date of October 31, 1960.

 12. On or before the closing date General Foods paid $ 100,000 to the plaintiff for the transfer of the trademarks and $ 150,000 to plaintiff's president, Harry M. Levin (Levin) for transfer of the patent.

 13. The recital clauses of the Main Agreement specifically state that the basis of the Agreement was to settle th trademark dispute and to permit General Foods to continue its use of the trademark 'Dream Whip.'

 14. Section 7 of the Main Agreement states that the parties will 'execute in good faith a mutually satisfactory agreement for the supply to General Foods by Wipt of said food dressing products.'

 15. Section 19(d)(ii) of the Main Agreement entitled 'Conditions' recites that General Foods' obligations are subject, to the receipt by General Foods, at the time of closing, of an executed supply agreement as provided in Section 7.

 16. Section 22 of the Main Agreement restricts the entire agreement of the parties to the written instrument and provides that modifications, alterations or changes must be in writing.

 17. The second agreement, known as the 'Supply Agreement', provided that General Foods would order from the plaintiff not less than 85% Of General Foods' requirements in a specific geographic region for certain food dressing ...


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