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BICENTENNIAL COMMISSION PENNSYLVANIA AND ERNEST P. KLINE v. OLDE BRADFORD COMPANY (10/22/76)

decided: October 22, 1976.

BICENTENNIAL COMMISSION OF PENNSYLVANIA AND ERNEST P. KLINE, LT. GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA AND CHAIRMAN OF THE BICENTENNIAL COMMISSION OF PENNSYLVANIA, AND COMMONWEALTH OF PENNSYLVANIA, BY ROBERT P. KANE, ATTORNEY GENERAL, PLAINTIFFS
v.
THE OLDE BRADFORD COMPANY, INC., W. THOMAS MORRIS AND EDITH DIXON MORRIS, DEFENDANTS



Original jurisdiction in case of Bicentennial Commission of Pennsylvania, and Ernest P. Kline, Lt. Governor of the Commonwealth of Pennsylvania and Chairman of the Bicentennial Commission of Pennsylvania, and Commonwealth of Pennsylvania, by Robert P. Kane, Attorney General v. The Olde Bradford Company, Inc., and W. Thomas Morris and Edith Dixon Morris.

COUNSEL

Melvin R. Shuster, Deputy Attorney General, with him Gerry J. Elman, Deputy Attorney General, J. Justin Blewitt, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for plaintiffs.

William A. Van Brunt, with him McNees, Wallace & Nurick, for defendants.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 26 Pa. Commw. Page 637]

This case is before us on preliminary objections filed by the defendants to plaintiffs' complaint in equity. Plaintiffs are seeking an injunction and an accounting, as well as other equitable relief for the alleged misuse of the seal of the Pennsylvania Bicentennial Commission (Commission)*fn1 on certain items of decorative metalware manufactured by defendant

[ 26 Pa. Commw. Page 638]

Olde Bradford Company, Inc. (Olde Bradford). Defendants have demurred to the four counts in plaintiffs' complaint and have raised a defense of laches, as well as other preliminary objections. We will discuss the demurrer first.

It is well settled that preliminary objections in the nature of a demurrer admit as true all well-pleaded facts in the plaintiff's complaint. Kutsenkow v. Kutsenkow, 414 Pa. 610, 202 A.2d 68 (1964). However, conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion are not admitted. Firing v. Kephart, Pa. , 353 A.2d 833 (1976).

With these principles in mind, we will summarize the facts as they appear in the complaint. On April 14, 1970, the Commission adopted its official seal. Later that year, on September 30, 1970, the Commission licensed Wilton Brass Company (Wilton) to manufacture and sell to the general public certain decorative metalware items bearing the seal. As part of the agreement, Wilton was to pay the Commission a specified royalty on each item sold. This agreement was modified on January 15, 1975. From the date of the original agreement to the present, Wilton has produced and offered for sale items bearing the seal.

On May 29, 1973, the Commission registered the seal as a service mark under the Act of September 26, 1951, P.L. 1518, as amended, 73 P.S. § 12 et seq. (Trademark Law), and as an emblem under the Act of May 5, 1927, P.L. 778, 54 P.S. § 41 et seq. (Emblem Act). The Commission filed a notice that it had adopted the seal on May 4, 1974 in the Pennsylvania Bulletin at 4 Pa. B. 892. The notice contained a reproduction of the seal, as well as a statement that permission from the Commission was required for use of the seal. Further notice to the same effect appeared at 5 Pa. B. 2291.

[ 26 Pa. Commw. Page 639]

Defendant Olde Bradford has, both before and after May 29, 1973, manufactured items bearing the seal similar or identical to the items manufactured by Wilton. Plaintiffs contend that defendants have (1) violated Section 4.1(b) of the Bicentennial Commission of Pennsylvania Act*fn2 (Bicentennial Act), (2) infringed the Commission's service mark, (3) misused the registered emblem of the Commission, and (4) engaged in deceptive practices under the Unfair Trade Practices and ...


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