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U.S. Supreme Court

A. Leschen & Sons Rope Co. v. Broderick & Bascom Co., 201 U.S. 166 (1906)

A. Leschen & Sons Rope Company v.

Broderick & Bascom Rope Company

No. 187

Argued March 1, 1906

Decided March 19, 1906

201 U.S. 166


A trademark for wire rope of a red or other distinctively colored streak applied to or woven in the rope is too wide and too indefinite.

Where color is made the essential feature of a trademark, it must be so

Page 201 U. S. 167

defined or connected with some symbol or design that other manufacturers may know what they can safely do.

A trademark not limited to a particular color must stand or fall in its entirety, and if the description is too broad, it cannot be sustained by proof that only a particular color is used.

Quaere whether mere color not impressed in a particular design can constitute a valid trademark.

In an equity action between citizens of the same state for infringement of trademark, the jurisdiction of the federal court depends solely on whether plaintiff's registered trademark is valid, and if it is not valid, jurisdiction cannot be assumed of the case as one where defendant has used plaintiff's device for the purpose of fraudulently palming off his goods as those of the plaintiff.

This was a bill in equity brought in the Circuit Court for the Eastern District of Missouri by the appellant, a Missouri corporation, against the appellee, another Missouri corporation, for the infringement of a trademark for wire rope, registered under the act of Congress of March 3, 1881, 21 Stat. 502.

The bill alleged that the plaintiff, the A. Leschen & Sons Rope Company, in 1888 had

"adopted for its use as a trademark for its highest and best grade of wire rope, a strand of a different color from the other strands of the rope, the said trademark then and now being effected by your orator by painting one of the strands of the rope so as to make it distinctly unlike the other strands of the rope;"

that it had continuously used the trademark to the present day; that it had been extensively advertised; that its sale had been very great, and that the company had obtained, December 4, 1900, a registration of such trademark in the office of the Commissioner of Patents.

The bill further averred that, early in the year 1900, the defendant company "commenced to paint one of the strands of its wire rope so as to make it of a distinctly different color from the other strands of the rope;" that, on October 31, 1900, it applied to the Commissioner of Patents for a registration; that the Commissioner declared an interference with the plaintiff, upon which proofs were taken, the case fully

Page 201 U. S. 168

argued, and plaintiff was declared to be the first to adopt the trademark; that notwithstanding this, defendant continued its unlawful use of this trademark with the intent to defraud plaintiff, to deceive the public, and to take unfair advantage of the demand for plaintiff's wire ropes, and that said mark is being used by said defendant to make sales of rope upon the strength of plaintiff's reputation. The bill further alleged the use of the trademark by both parties in commerce between the United States and foreign countries.

Defendant demurred on the ground that the trademark set up in the bill was not a lawful and valid trademark. The demurrer was sustained, the bill dismissed (123 F.1d 9), and the decree of the circuit court affirmed by the circuit court of appeals. 134 F.5d 1.

Page 201 U. S. 169

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