operation reports. During 1982, Best Resume inquired of Care as to why he had ceased to remit royalties and operating reports and was advised by Care that he had elected to terminate the Franchise Agreement on November 22, 1982. Best had delivered to Care a formal acceptance of the termination and notice. The termination letter provided that he should cease operation of the franchised office by December 24, 1982, as provided for in the termination provisions of the Franchise Agreement.
At no time since October, 1981 has Care remitted any royalties, furnished operating reports or complied with any other duties of the Best Resume Franchisee, as provided in the Franchise Agreement. Subsequent to the termination of Care's franchise, Best Resume checked the yellow pages' listings and made inquiries at Care's place of business in order to satisfy itself that Care was not continuing to use or advertise by the trade name "Best Resume Service".
Following this, in March of 1984, Best Resume entered into a new Franchise Agreement for the Westmoreland County territory with a franchise which opened in Greensburg, Pennsylvania. The new franchise has alerted Best Resume to the fact that Care had resumed use of the trade name and service mark "Best Resume Service" by advertisements which were placed in the Tribune Review Newspaper in Greensburg on the dates of March 8, 26, 27, 28, 29, 30, 31 and April 1, 2, 3 of 1984 as indicated by exhibits admitted at the hearing.
Additionally, the authorized Best Resume franchise had received correspondence from a local bank which concerns one of Care's customers and which further indicates that Care is wrongfully using the name Best Resume Service. A copy of the Equibank letter and check were admitted into evidence as well.
The defendant, Ronald Care, avers to the contrary that the defendant did not wrongfully appropriate the name, but paid the plaintiff full and complete consideration for the name prior to the time the plaintiff had registered the name as a trademark. Care claims that he acquired the right to use the name by payment to the Franchisor of $12,500 to acquire the franchise. Care thus seems to be proposing the novel theory that the implementation of a franchise agreement involves the irrevocable sale of the name even if the franchisee breaches the contract and terminates the agreement.
The defendant further avers that the name registered by Best Resume Service, Inc. on February 24, 1981 is not the same because the name as registered has an accent mark over the word "resume" and in fact was registered after 1979 when the name was used by Ronald Care in the operation of his business. The evidence demonstrates franchise agreement was terminated by Ronald Care because of his breach of contract in failing to provide services called for under the franchise agreement.
The Lanham Act, 15 U.S.C. § 1053 provides that service marks are registerable in the same manner as trademarks, and when registered, are entitled to the same protections. With respect to infringement, 15 U.S.C. § 1114 states in pertinent part:
"(1) Any person who shall, without the consent of the registrant --