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June 4, 1974


The opinion of the court was delivered by: NEWCOMER


 Newcomer, District Judge.

 Presently before this Court is petitioner Donald Edward Allen's amended motion to vacate sentence and grant a new trial under 28 U.S.C. § 2255.

 We set forth the following facts by way of background. Donald Allen and John O'Brien were each charged with bank robbery and each was tried before a judge and jury. The trial commenced on May 30, 1972 and continued through June 7, 1972. Each defendant was found guilty on all four counts of the indictment and each was sentenced to twenty (20) years imprisonment on count four of the indictment. Defendants thereafter appealed to the United States Court of Appeals for the Third Circuit which Court affirmed the lower court in a Judgment Order dated March 23, 1973. Petitioner thereafter petitioned the Supreme Court of the United States for a writ of certiorari which petition was denied on October 9, 1973, 414 U.S. 845, 94 S. Ct. 107, 38 L. Ed. 2d 83. Thereafter, on or about June 15, 1973, petitioner filed his pro se motion to vacate sentence pursuant to Section 2255 of Title 28 U.S.C. in the above captioned action. On July 12, 1973, the Honorable Tullio Gene Leomporra ordered the United States Attorney to file an answer to petitioner's motion within twenty (20) days from the date of his order. On August 1, 1973, the United States was granted an additional thirty (30) days in which to answer said motion. On September 10, 1973, the government responded to petitioner's motion. On November 14, 1973, we ordered that petitioner be permitted to proceed in forma pauperis, that counsel be appointed to represent petitioner and that petitioner shall have thirty (30) days to file an amended motion to vacate sentence pursuant to Section 2255 of Title 28, United States Code, prior to our ruling on the necessity of holding an evidentiary hearing. On March 11, 1974, we directed that an evidentiary hearing be held on March 19, 1974 at 2 p.m. Said hearing was continued to April 2, 1974 at 2 p.m.

 Petitioner's Section 2255 motion is grounded on the question of whether or not petitioner received a fair trial by an impartial jury as the Sixth Amendment commands. Petitioner asserts that several events occurred during the course of his trial which caused the jury to be subjected to certain influences which were prejudicial to his case. We will deal with his contentions separately.

 Petitioner's most significant claim of prejudice arises from the following incident. On the fifth day of trial, June 5, 1972, one member of the jury, Mr. John P. Myers, was approached by a spectator in the courtroom and they became engaged in conversation. The substance of the conversation in part related to the pending criminal trial of the petitioner. The spectator, a Mr. James McGee, stated that he told the juror in his conversation with him outside the courtroom entrance that he knew the defendant John O'Brien who was being tried as a co-defendant for the same offense as was petitioner. Mr. McGee also stated to the juror that he wanted to be a witness for defendant O'Brien because he was with him on the day of the alleged robbery and defendant O'Brien was not near the bank in question but that he could not swear to it from the witness stand. Thereafter the two parted.

 Unbeknownst to either Mr. McGee or juror Myers, the event was observed by officer Joseph Grant who overheard portions of the conversation between Mr. McGee and juror Myers. Officer Grant related what he had seen and heard to then Assistant United States Attorney Thomas J. McBride who immediately brought the incident to the attention of the Court in the presence of defendants and their counsel but out of the presence of the jury. Thereafter, the Court with the agreement of all counsel, brought Mr. McGee into the anteroom adjoining the courtroom, swore him and questioned him regarding the alleged conversation. Defendants and all counsel were present for the questioning. Mr. McGee related to all present that he had in fact spoken to juror Myers about the pending case and stated that he had told juror Myers that he wanted to be a witness for Mr. O'Brien because on the particular day of the alleged robbery, he, Mr. McGee, was with defendant O'Brien but that he could not remember enough of the facts to swear to it in open court. Mr. McGee also indicated that he had not had any conversations with any jurors other than juror Myers and that there were no other jurors in the vicinity during the conversation. Mr. McGee then left the anteroom and after a short discussion, it was agreed that juror Myers would be brought into the anteroom and questioned to obtain his version of the conversation and to ascertain whether or not he had spoken to any of the other jurors about his conversation with Mr. McGee.

 Juror Myers was brought into the anteroom and questioned by the Court. Juror Myers stated in essence much of what Mr. McGee related to the Court during his questioning except that juror Myers was sure that Mr. McGee was referring to defendant Allen during the conversation and not defendant O'Brien. Juror Myers stated that after he had conversed with Mr. McGee, he went back to the jury room and forgot what Mr. McGee had told him. He stated that he did not discuss any part of his conversation with any of the other jurors, and although some other jurors may have been in the vicinity during the actual conversation itself, juror Myers doubted very much that any other juror had seen or heard the conversation which took place. The Court then admonished juror Myers for not having brought this to the Court's attention and removed him from the jury with counsel's approval. Mr. McGee was escorted from the courthouse. The Court stated at that time that it was reasonably satisfied that Mr. McGee had not talked to any other jurors and that juror Myers had not communicated with any other members of the jury concerning this matter. The trial was thereafter reconvened and alternate number one was substituted for juror number twelve. No reason was given for the removal of juror Myers in order that no further possible contamination occur in the presence of the jury.

 Petitioner argues that the Court erred by failing to examine the other members of the jury either as a group or individually, to ascertain whether or not any other juror had overheard the conversation which occurred between Mr. McGee and juror Myers or whether or not Mr. McGee had talked to any other juror regarding the case.

 Several aspects of this incident must be considered to determine whether or not any prejudice occurred as a result of the Court's handling of this event.

 The law is clear that in a criminal case,


". . . Any private communication, contact or tampering directly or indirectly, with a juror during a trial about the matter pending before the juror is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant." Remmer v. United States, 347 U.S. 227, 229, 74 S. Ct. 450, 451, 98 L. Ed. 654, 656 (1954).

 The petitioner is correct in stating that the conversation between Mr. McGee and juror Myers is presumed to be prejudicial to the petitioner's case. The presumption remains in effect until such time as the government is able to establish that the contact was not prejudicial to the defendant's interest. If the contact is not prejudicial, then there is no violation of the Sixth Amendment right to a fair and impartial jury.

 Also, the Court must apprise the defendant of the fact of any private communication and must take evidence concerning the identity of those involved and the nature and extent of the communication. Normally the participants would be questioned as to the content of the communication, who was present and who overheard the communication. However, the approach taken by the trial judge in a given case is left to his discretion. See Morgan v. United States, 399 F.2d 93 (5th Cir. 1968) and the cases cited therein.

 A reading of those cases cited by petitioner which involved an "unauthorized" communication with a juror and a third party indicate that the circumstances surrounding the communication dictate what tack the court took in attempting to get at the question of whether or not the communication was prejudicial and if so, to whom was it communicated. In the Morgan case, cited above, one of the defendant's friends, a Mr. Bryant, who had been in court during the entire trial, reported that he had overheard a conversation between one of the jurors and another person not on the Morgan jury but in the panel regarding the pending trial. The Court, after determining that the conversation as related by Mr. Bryant was in fact prejudicial to defendant Morgan reconvened the entire panel of jurors in order that Mr. Bryant be given an opportunity to identify the participants to the conversation. Mr. Bryant could only identify the non-Morgan juror, Mr. Blews, but was unable to point out the Morgan juror. Blews related that he might have discussed with another juror the fact that he had served on the jury in the civil case in which Morgan recovered a substantial sum against an insurance company. Blews did not know whether the person to whom he addressed his remarks was a juror on the Morgan case or not.

 The trial judge then examined each individual juror to determine which juror or jurors, if any, had been involved in a conversation regarding Morgan's civil case. One juror indicated that he knew about the civil verdict but had not engaged in any conversation regarding same with Blews. Another juror stated that 4 days after the verdict, he had asked Frank Blews why he had been excused from the criminal jury. Blews had told him that he was dismissed because he had served on the Morgan civil jury. Both Blews and Duncan denied that their conversation concerned any attempt by Morgan to defraud anyone.

 The Morgan case was remanded for clarification of one of the trial court's findings of fact on defendant's motion for a new trial. The trial court amended its findings to say that there had been no prejudicial conversation between the Morgan juror and the non-Morgan juror.

 The Morgan case is a good example of how a particular incident should be handled to avoid possible prejudice in a given case.

 The facts in the instant case, however, do not require this Court to do exactly what was done in the Morgan case. The trial judge in Morgan had to interview all of the jurors in order that the identity of the juror with whom Blews conversed be established. In the instant case, we were able to establish the identity of the parties to the conversation at the outset and we determined after extensive questioning and cross-examination in the presence of defendants and their counsel that even if the conversation was prejudicial, no other members of petitioner's jury had overheard it. In so concluding, we had hoped to exorcise the contaminated juror from the jury without contaminating the entire group in the interest of judicial economy. We dismissed the juror from further service without giving any reason therefore and replaced him with alternate No. 1. However, as we will point out shortly, there may well have been no need to replace juror No. 12 because the conversation was not prejudicial. Also, we point out at this point that the procedure followed by most courts in questioning each individual juror where the allegation centers around a prejudicial newspaper article is not apposite to cases of "unauthorized" communication because the question in those cases is initially who, if anyone, has read the article.

 The Court in its attempts to be abundantly careful dismissed juror No. 12 even though it may not have been necessary to do so. The substance of the conversation itself would appear to have helped the petitioner rather than prejudice him. Mr. McGee said nothing to inculpate either of the defendants and his statement tended to exculpate the petitioner. The reasonable interpretation of Mr. McGee's statement would tend to inject further doubt as to petitioner's guilt and would not tend to be detrimental to the juror's view of the case. Obviously even if the other jurors overheard the conversation, they would not have been prejudiced either. No one testified as to Mr. Allen's whereabouts on the day of the robbery so that the McGee communication did not contradict any witness' statement in that respect. The communication did not therefore tend to impeach the credibility of any witnesses other than those of the prosecution. It is our opinion, therefore, that the substance of the conversation between Mr. McGee and juror Myers did not include matters which would prejudice the defendant's case in any way.

 The other two incidents do not require as thorough an explanation and can be dealt with in a single explanation. Each incident involved a bomb scare, one real and one a practical joke. The actual bomb scare did occur during a recess of the trial of the case. Apparently, the security force in the courthouse had information that a bomb had found its way to the sixth floor of the courthouse via the briefcase of a female observer of another trial. The security force walked into the courtroom in which the above case was pending and in view of most of the jury asked Mrs. Allen, petitioner's wife, if that was her briefcase in which the alleged bomb was placed. Mrs. Allen said that it was not her briefcase and the security guard continued with "Are you sure?" Mrs. Allen said she was sure and the matter was dropped.

 The second bomb incident occurred outside the courtroom the day after the actual bomb scare described above took place and involved again Mr. James McGee. It seems that Mr. McGee was joking around in the corridor outside the courtroom with a bicycle inner tube box stating that he had a bomb "in here" and tapping it. Some jurors were out in the hall apparently watching McGee's antics.

 Defendant asserts that both of these bomb scare incidents resulted in prejudice to his case. The second scare involving McGee could not have been harmful to petitioner's case and we reject his contention that it was so. There is absolutely no evidence to support any finding of prejudice with respect to such incident.

 The bomb scare involving Mrs. Allen could have been prejudicial if Mrs. Allen had testified on an important point for her husband such as alibi but she did not. The case certainly did not rise or fall on her testimony as the record adequately indicates. The jurors' views of her credibility would not have prejudiced petitioner's case because her testimony although it certainly favored her husband, did not, even if believed completely, exculpate him from the commission of the crime. Again the standard of whether or not prejudice has occurred is left to the sound discretion of the trial judge and we are convinced that this petitioner received a fair trial before an impartial jury.


 AND NOW, to wit, this 4th day of June, 1974, it is hereby Ordered that the amended motion of petitioner Donald Edward Allen to vacate sentence 2255 is DENIED.

 IT IS SO ORDERED. and grant a new trial pursuant to 28 U.S.C. Section U.S. 400 (1965); Barber v. Page, 390 U.S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318

 On its face this would seem to be perfectly valid defense; plaintiff, however, has raised a number of arguments which allegedly invalidate this defense for defendant.

 Plaintiff first contends that inasmuch as section 115(b) (5) indicates that the right to use the mark must be incontestable and since plaintiff's mark is not yet incontestable, the defense is unavailable to defendant. This contention is without merit. 15 U.S.C. § 1065 indicates that for a mark to be incontestable it must have "been in continuous use for five consecutive years subsequent to the date of such registration...." Obviously, five years have not elapsed since the registration of plaintiff's marks and therefore they are not as yet incontestable.

 It would be patently absurd for this Court to rule that an incontestable service mark is subject to a statutory defense while a contestable one is not. An incontestable mark, by definition, enjoys greater procedural protection than one of a lesser status. Tillamook County Creamery Ass'n v. Tillamook Cheese and Dairy Ass'n., 345 F.2d 158 (9th Cir.), cert. denied, 382 U.S. 903, 15 L. Ed. 2d 157, 86 S. Ct. 239 (1965). If this be the case, clearly a defense to an infringement action based on an incontestable service mark must also be applicable to a contestable mark. Avon Shoe Co. v. David Crystal, Inc., 171 F. Supp. 293, 299 (S.D.N.Y. 1959), aff's, 279 F.2d 607 (2d Cir. 1960), cert. denied, 364 U.S. 909, 81 S. Ct. 271, 5 L. Ed. 2d 224 (1960).

 Next, plaintiff contends that since the president of defendant corporation, the individual who actually signed the New Jersey papers relating to registration of the mark, is deceased, evidence of his state of mind is inadmissible as hearsay; therefore, defendant cannot rely on innocent adoption as a defense. This argument would be quite compelling but for two facts: 1) Mrs. Bonanni, wife of the deceased president of defendant, was also a part owner of the business at the time the New Jersey state registration was obtained. Therefore, she is clearly competent to testify as to her own state of mind at the time of registration and has done so; 2) on an evidentiary basis, plaintiff cannot postulate, as it attempts to do, that Mr. Bonanni did know of the plaintiff's motel operations. This would present as much of a hearsay problem as Mrs. Bonanni's testimony. In short, plaintiff cannot do what it objects to Mrs. Bonanni's doing. Therefore, the position of neither party shall benefit or be harmed by the state of the mind of Mr. Bonanni. In conclusion the defense of innocent adoption is available to defendant based on Mrs. Bonanni's own state of mind and her impressions during the proceedings devotes much time and energy to discussing the collocations of common features between plaintiff's and defendant's motel advertising. Plaintiff argues that the mere fact of exact reproduction of its service mark clusters by defendant is sufficient to show willful infringement. The general proposition propounded by plaintiff is undoubtedly accurate. Dumore Co. v. Richards, 52 F.2d 311 (W.D. Mich. 1930), aff'd, 52 F.2d 312 (6th Cir. 1931), 3 Callmann, Unfair Competition, Trademarks, and Monopolies. § 82.1(h) at 711 n. 64 (3d ed. 1969). However, in the case at bar these collocations of common features are not at all as extensive as plaintiff would have the Court believe. Both parties utilize a man with a cape with red and black coloring. Additionally, the lettering of the word MATADOR is nearly identical Defendant, however, despite plaintiff's contention, does not place this figure in an archway, although the man is positioned above the word. Moreover, plaintiff no longer uses the stylized "M" because it increases the cost of signs too greatly.

 Defendant asserts that its corporate owners determined that their motel should have a Spanish or Mediterranean motif. Subsequently, a brochure *fn3" was called to their attention which contained a certain style door titled MATADOR. Defendant seized upon this concept and decided to use that name for their motel since it characterized the design motif already chosen. Defendant then claims that the alleged deliberate common collocations all flowed naturally from the choice of the name MATADOR. In support of this argument, defendant has submitted reproductions of the Official Gazette of the United States Patent Office. These pages show three products named MATADOR - each of which has a logo of a matador with a cape. In essence, defendant argues that once the name MATADOR was chosen, all other similarities flowed naturally and logically from that choice. Additionally, defendant has submitted the affidavit of Harry Lanza, the signmaker for New Jersey MATADOR. This affidavit states that Lanza brought the name MATADOR to the attention of defendant's owner, after he had observed it on the above mentioned door brochure in a lumberyard.

 It should also be pointed out that plaintiff's reputation is not such that the general public would be aware of its existence. Matador Motor Inns was not exactly a household word in 1970 or even now. Therefore, in light of the deposition, uncontroverted affidavits, and exhibits submitted by defendant, this Court is unwilling to infer from certain limited similarities of advertising that the defendant intentionally copied plaintiff's service mark cluster.

 Plaintiff next maintains that since the door brochure *fn4" from which defendant obtained the name MATADOR, was published by Ideal Millworks Co., a division of the corporation of which plaintiff's parent corporation is a subsidiary, the "related company" doctrine of 15 U.S.C. § 1055 must be considered. This contention is largely without merit in that plaintiff and Ideal are not related companies within the meaning of the Lanham Act. In order for the doctrine to apply, it must be shown that Ideal is controlled by plaintiff, the registrant of the trademark, with respect to the doors Ideal manufactures. Alligator Co. v. Robert Bruce, Inc., 176 F. Supp. 377, 378 (E.D. Pa. 1959). No such showing has been made or even attempted by plaintiff, except for the statement that the related companies doctrine is applicable. This Court finds as a matter of law that Ideal and plaintiff are not related companies.

 Also with regard to Count One, plaintiff finally contends that the doctrine of innocent adoption is inapplicable in motel cases because of the mobility of actual and potential patrons in high-powered automobiles on a vast network of interstate highways. Although the mobility of the American public with respect to automobile travel is certainly open to question in these energy conscious times, the Court will deal with this contention.

 Plaintiff's argument centers around the proviso of 15 U.S.C. § 1115(b) (5), supra. The position taken is that the defense is only applicable in the area in which the prior continuous use is proved but that courts, when dealing with hotels, motels, and restaurants, have in effect read out that proviso because of travelling mobility and the wide geographical area from which establishments of this type draw their clientele.

 The Court need not concern itself with this aspect of the argument. All cases cited by plaintiff, and to some extent refuted by defendant, involved unfair competition and either of two situations: 1) where the owner of a registered trademark shows a likelihood of entry into the innocent prior user's market area, or 2) where the owner of a registered trademark actually enters into the market area of the innocent prior user. Neither of these situations is present in the instant controversy over Count One. The unfair competition claim of plaintiff, infra, presents a different situation. The only relevancy market areas have in this case is for determining the area of prior continuous use by the defendant. In this regard, a further hearing is required to determine the extent of defendant's market area. This issue will be determined at trial.

 In conclusion, there being no disputed material facts, summary judgment plaintiff's complaint. The trier of fact will determine the area of defendant's prior continuous use.


 In this count plaintiff seeks relief pursuant to 15 U.S.C. § 1125(a) alleging a "false designation or origin" on the part of defendant.

 15 U.S.C. § 1125(a) states in part:

 Any person who shall...use in connection,...a false designation of origin, or any false description or representation, including words or other symbols...shall be liable to a civil any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

 It should be noted at the outset that a cause of action under the above section is not dependent on possession of a federally registered trademark. Potato Chip Institute v. General Mills, Inc., 333 F. Supp. 173, 179 (D. Neb. 1971). "The misconceptions are obviously attributable to the fact that section 43(a) [ 15 U.S.C. § 1125(a)] is a part of the Trademark Act where, of course, it does not logically belong." Callmann, Unfair Competition, Trademarks, and Monopolies, § 18.2(b) at 622 n. 26 (3d ed. 1967).

 Of course, in the instant action a service mark is involved. We have held, however, that the defendant is an innocent prior adopter within an area yet to be determined. This decision places the Court on the proverbial "horns of a dilemma": Can an innocent prior adopter of a service mark be in violation of § 1125(a), or would such a determination be a contradiction in terms? This Court feels compelled to hold that if innocent prior adoption in a particular area has been proved as a defense to a service mark infringement action, then that innocent prior adoption must also serve as a defense to a section 1125(a) action.

 A brief examination of the policies involved in the two statutes will illustrate the absence of any contraction in this holding. The trademark statutes were devised to: 1) protect the businessman in his property rights to the mark, and 2) protect the public. Wells Fargo & Co. v. Wells Fargo Exp. Co. 358 F. Supp. 1065 (D. Nev. 1973).Section 1125(a) was also developed to protect consumers and competitors against all forms of misdescription or misrepresentation of products and services in commerce. Yameta Co. v. Capitol Records, Inc., 279 F. Supp. 582 (S.D.N.Y. 1968). Obviously, the policies of the two enactments are virtually the same. The difference lies in the initiation point of protection. The general trademark statutes protect a federally registered mark from a statutorily defined infringement, while Section 1125 protects one competitor from the actions of another amounting to a form of unfair competition. Just as, in some cases, a finding of infringement of a service mark will a fortiori lead to a violation of Section 1125(a), so too will a finding of innocent adoption of a service mark lead to the almost inescapable It would be incongruous for this Court to find that giving defendant the right to use that mark in the area of continuous prior use, and then find that defendant has engaged in a false designation or representation of origin. The two statutes in question could not have been intended to achieve that result; Section 1125(a) "must still be read in the context of the statute in which it appears...." General Pool Corp. v. Hallmark Pool Corp., 259 F. Supp. 383, 386 (N.D. Ill. 1966).

 Plaintiff has cited Parkway Baking Co. v. Freihofer Baking Co., 255 F.2d 641 (3d Cir. 1958) as authority for the proposition that innocent adoption is irrelevant in a section 1125(a) action. Parkway does not stand for such theory. The Parkway court said: "[Mistake] is not a defense to an action under this section for there is no requirement that the falsification occur wilfully and with intent to deceive." Id. at 648. Defendant does not claim mistake as lack of intent in this action; rather, defendant maintains that as a matter of right it can use the name MATADOR which it innocently adopted. The issue of falsification is not at all present in Count Two.

 In Steak & Brew, Inc. v. Beef & Brew Restaurant, Inc., 370 F. Supp. 1030 (N.D. Ill., 1974), a case closely analogous to the one at bar, the court held that the defendant had not violated Section 1125(a) because "[they] innocently adopted the name for use in a market area in which plaintiff was then unknown. They are entitled to the continued use thereof." Additionally, in discussing the issuance of a preliminary injunction in a section 1125(a) case the court, in Sulton Cosmetics (R.R.) v. Landers Co., 455, F.2d 285 (2d Cir. 1972), indicated that priority of use would not necessarily prevail over an innocent second use. Id. at 289.

 Therefore, for the foregoing reasons, plaintiff's motion for summary judgment as to Count Two will be denied and that of defendant's will be granted.


 This count is founded on 15 U.S.C. § 1126(g) which provides that trade or commercial names shall be protected regardless of filing or registration. The persons protected are defined by subsection (b). In L'Aiglon Apparel v. Lana Lobell, Inc., 214 F.2d 649, 653 (3d Cir. 1954), the court held that Section 1126(h) was not applicable to a controversy between United States citizens. L'Aiglon analyzed the legislative history of the section as well as its title - International Conventions. We find that the reasoning of L'Aiglon, as applied to subsection (h), is equally applicable to subsection (g) and therefore defendant's motion for summary judgment as to Count Three will be granted.


 This count has a dual basis: 1) 15 U.S.C. § 1126(h) and 2) unfair competition.

 In light of this Court's reasoning in L'Aiglon Apparel v. Lana Lobell, Inc., supra, summary judgment will be granted to defendant as to the 15 U.S.C. § 1126(h) aspect of this count.

 The remaining facet of this case is plaintiff's claim of common law unfair competition. Ordinarily, this Court would be without jurisdiction to hear this claim in the absence of pendent jurisdiction. Plaintiff, however, has also alleged diversity of citizenship and the requisite jurisdictional amount. As a result, jurisdiction exists independently of the federal statutory actions.

 Additionally, since the law of unfair competition developed independently of, or at least tangentially to, federal trademark statutes, we are not faced with the disturbing prospect met earlier - that is, resolution of results based on the same facts and the same policy. It is within the realm of possibility that the law of unfair competition might forbid what the trademark statutes would seemingly permit. With this, in mind, the Court can proceed to analyze this last claim.

 It is fundamental to the law of unfair competition, particularly in cases dealing with restaurants, hotels and motels, that geographical trading areas, likelihood of public confusion, and extent of reputation are of paramount importance. See, e.g., Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 60 L. Ed. 713, 36 S. Ct. 357 (1916); Holiday Inns of America v. B & B Corporation, 409 F.2d 614 (3d Cir. 1969); Fred Harvey v. Harvey House, Inc., 278 F. Supp. 172 (E.D. Pa. 1968); Tisch Hotels, Inc. v. Atlanta Americana Motor Hotel Corp., 254 F. Supp. 743 (N.D. Ga. 1966); Quality Courts United, Inc. v. Quality Courts, Inc., 140 F. Supp. 341 (M.D. Pa. 1956). All of these factors are seriously and rigorously disputed in this case. Some of them are only mentioned in passing in opposing briefs. we find that there are disputed material facts and therefore the grant of summary judgment would be inappropriate. Accordingly, both plaintiff's and defendant's motions for summary judgment, as to the unfair competition aspect of Count Four, will be denied.

 Counsel may submit an order in accordance with the foregoing opinion.

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