Eastern District buying powder

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Eastern District buying powder

The defendant manufactures and sells a chemical compound called Dresinol 42 to be used with starch in making sizing for carpets. The plaintiff manufactures and sells carpets. Between June 3, , and July 18, , the plaintiff bought a quantity of Dresinol 42 from the defendant and used it in making carpet. Louis, Missouri. On arrival at St. Louis it was discovered that a good deal of the carpet in the interior of the rolls was charred and burned, the charring being due to a combustible ingredient in Dresinol 42 which had a spontaneous ignition hazard. The defendant has moved for summary judgment, submitting an affidavit which merely sets forth in full the contracts under which the plaintiff purchased the material in question. There is no dispute about these and the case is the same as though the plaintiff had incorporated them into the complaint, and the defendant had moved to dismiss for failure to state a claim upon which relief can be granted. The claim is not for breach of warranty. There is no express warranty and the terms of the contract negative any implied one. If the plaintiff can recover at all it can only be on the ground of negligence. There is no doubt that the complaint sets forth actionable negligence. The only question is whether the defendant could and did by its contract relieve itself of liability for negligence to this particular buyer. The general rule is that one party to a transaction may ordinarily contract to limit or eliminate his liability for negligence in performing his obligations. There is no rule of public policy which makes such provisions ineffective, particularly when the obligee is under no disadvantage by reason of confidential relationship, disability, inexperience or the necessities of the situation. In the present case the parties were both corporations engaged in large scale manufacturing. The plaintiff was under no compulsion to buy from the defendant and, if it desired to buy from it, had the choice of accepting the defendant's terms or going elsewhere. The plaintiff stresses the inherently dangerous character of the compound by reason of its tendency to ignite spontaneously. Of course, there is a duty upon the manufacturer of an inherently dangerous substance to exercise all reasonable care. It must be conceded for the purposes of this discussion that such duty existed and that the defendant failed to discharge it. The question remains whether the parties in this case could and did relieve the defendant of all liability for such failure. Upon that question the attempt to distinguish between the substances inherently dangerous and those having no such qualities is 'of little practical use. Electric Co. The phrase is an illusory one at best and, as Justice Maxey pointed out in the case cited, 'the futility of invoking this phrase in the adjudication of cases becomes increasingly apparent. It may be that a substance which has a tendency to ignite spontaneously can properly be described as 'inherently dangerous' but the element of danger or peril involved in its use has no bearing upon the legal situation in the present case. It might have been important had the material caused a conflagration or loss of life or personal injury; on that point no opinion need be expressed. The plaintiff's cause of action in the present case is simply that the defendant sold him something which, when used, ruined his carpets. His position is no different than if the compound had made them unsalable by developing a bad smell or by rotting them or by bleaching out colors. If I am correct in concluding that the parties could legally contract to relieve the defendant of liability for the damage which occurred, the only question left is whether they did so, and I am of the opinion that they did. It would be hard to devise a more general or inclusive provision than 'Buyer assumes all risk and liability whatsoever resulting from the use of such materials. In determining what the parties intended to accomplish by the contract, the situation of the defendant as well as that of the plaintiff must be borne in mind. It can be well understood why a manufacturer of chemicals would want to guard against liability arising from any and every use to which its products might be put and inserted the clause in question for that purpose. If the parties had diverse ideas as to what the term meant it must be given its ordinary meaning and 'all risk and liability whatsoever' must be taken to mean what it says. In the foregoing, the following facts, contained expressly or by necessary implication in the complaint, have not been overlooked but have been assumed to exist:. It does not appear, however, that the defendant actually knew of this quality. On the contrary, it appears that 'Dresinate 42' which the plaintiff avers is the same thing as 'Dresinol 42' had been used by the plaintiff before apparently without mishap. In this connection, however, it is to be noted that the contract provides that 'there are no oral agreements or warranties collateral to or affecting this Agreement. I do not think that the defendant's point, to the effect that the plaintiff cannot recover because it has not actually paid and discharged its liability to its purchaser, is well taken, although in view of the conclusion reached above, it is unnecessary to decide that point. Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes. Get free summaries of new Eastern District of Pennsylvania U. Federal District Court opinions delivered to your inbox! Hercules Powder Co. Charles Lachman Co. District Court, E. May 20, The important part of the contract is the following: '3. Judgment may be entered for the defendant. Enter Your Email. Justia Legal Resources. Find a Lawyer. Law Schools. US Federal Law. US State Law. Other Databases. Marketing Solutions.

Pro-Phy-Lac-Tic Brush Co. v. Abraham & Straus, 11 F. Supp. 660 (E.D.N.Y. 1935)

Eastern District buying powder

Nims, George P. Dike, Wallace H. Martin, and Stewart L. Whitman, all of New York City, of counsel , for plaintiff. Greenawalt, and George T. Bean, all of New York City, of counsel , for defendant. Plaintiff claims that the word 'Prophylactic' itself is not well known and when used is descriptively used as an adjective. That a trade-mark in such a word can exist only when it has acquired a secondary meaning. That in the case of plaintiff it has obtained such meaning but not in the case of defendant. That defendant cannot rely on registrations of this trademark for tooth powder. That even if the trade-mark is good, the title is defective. That defendant's vendor and defendant have unfairly competed with plaintiff. On the other hand, defendant asserts that tooth powder and toothbrushes are so dissimilar that they cannot be considered 'related' merchandise or competitive articles. That both plaintiff's and defendant's vendor trace their rights to the same source. That plaintiff refused to enter the tooth powder field. That plaintiff has created the confusion as to origin, and that if any such confusion results it is only from the exercise of their legal rights by the respective parties. That plaintiff is guilty of unfair competition. That defendant has not been guilty of imitating plaintiff's trade-mark, so as to palm off its product or confuse the two. That plaintiff is guilty of laches sufficient to bar relief. That there exists an equitable estoppel amounting to a defense, and finally that there can be no monopoly of color. Almost seventy years ago the Florence Company, a Massachusetts corporation at Florence, that state, went into the business of manufacturing and selling brushes of various sorts. In the Pro-phy-lac-tic Brush Company, likewise a Massachusetts corporation, was incorporated and succeeded to the business. In the plaintiff, a Delaware corporation, succeeded, in turn, to this business which is still conducted at Florence, Mass. About fifty years ago a New York dentist, Dr. Rhein, had duly sold and transferred to the Florence Company a toothbrush, which he subsequently patented, which he called the 'Prophylactic' toothbrush. I shall refer hereafter to the plaintiff instead of the preceding corporate steps in title, etc. In this name 'Prophylactic' was duly registered as a trade-mark. It was again registered in Three years thereafter it was again registered in hyphenated form. This registration was renewed in For these fifty years this toothbrush was always contained in a 'yellow' carton with the word 'Prophylactic' in 'red' letters. For about forty years this colored carton has been emphasized. In the label and title 'Pro-phy-lac-tic Tooth Brush' was registered showing this yellow box or carton and also in It is fair to say that, from the evidence in this suit, this particular toothbrush, in its distinctive carton, yellow box with the red letters 'Prophylactic,' has been for years very widely known throughout the entire United States and elsewhere. The distinctive word 'Prophylactic,' by this association, has come to mean to consumers and buyers generally, not only plaintiff's toothbrush, but to indicate the source of its manufacture. This trademark has acquired a secondary meaning. Merriam Co. Saalfield C. During this long period plaintiff has expended large sums of money in advertising. This advertising has been in all the leading periodical magazines and trade journals of the country and in various other ways. To-day the business is a very large and important one, identified by this unusual distinctive word 'Prophylactic' accompanied and accentuated by the 'yellow carton' and the word in 'red letters. From to the yearly average of sales of this brush, in its yellow box, has been in excess of 7,, brushes. Yet this large and profitable business finds itself in a position where it must now appeal to a court of equity to protect it from a recent adroit appropriation of its good will and trade-marks, on which it has spent these large sums of money, because there has been offered an opportunity to this unfair competitor not only to mislead the buying public into believing that the source of manufacture of a tooth powder of such competitor is identical with the source of manufacture of plaintiff's toothbrush, but seriously endangering any fair opportunity for plaintiff to itself manufacture and sell a tooth powder to the millions who now use its toothbrush. The adroit scheme mentioned arises as follows: Dr. Rhein, the dentist, who as above stated originally sold the rights to the toothbrush, etc. During the years up to his death in , he sold this tooth powder as best he could by himself or in corporate form, with limited advertising mostly in dental journals. These sales were mostly confined to the New York City area. He put up this tooth powder always in a 'gray or cream can with a purple top. In he registered the word 'Prophylactic' for this tooth powder and tooth paste. He founded the corporation Prophylactic Tooth Powder, Inc. The mark was subsequently renewed in by this corporation. During this time Dr. Rhein was very anxious to sell the tooth powder business to plaintiff's predecessor, without success. In , Dr. Rhein made arrangements with a well-known drug concern in New York to distribute the powder, and both he and his wife did their best, by attending conventions, etc. The powder was always in the cans decorated as above. When he died, Dr. Rhein left in his will instructions for his executors and trustees to carry on this business of the Prophylactic Tooth Powder, Inc. This was done for a while until the Prophylactic Products Corporation was incorporated. Later this Products Corporation to all intents and purposes went out of business, its ten-year license was canceled, and it reassigned to the Prophylactic Tooth Powder, Inc. Rhein's will also released and transferred to the Prophylactic Tooth Powder, Inc. The former then designated the latter its sales and distributing agent. Apparently back of all this web of corporate interests is the Shulte Cigar Stores interests. The real controversy exists between plaintiff and these large outside interests. The defendant is a large department store in Brooklyn a New York corporation. The mere fact, however, that defendant is merely such buyer or agent is no ground for refusing an injunction against it if the facts require the issuance of same. Walter Baker Co. Sanders C. John Wanamaker, New York D. Gandolfi C. There is a suit pending for the same cause in the Southern District of New York, which has not as yet been reached there for trial. Plaintiff applied for and has obtained from the District Court, in that suit, a temporary injunction. Rhein, the dentist. These rights, thus obtained by plaintiff, as to trade-marks, etc. There appears to have been past assignments by Mrs. Rhein as well as by Dr. Rhein, transfers and retransfers, and execution of licenses, all without due regard to any existing business. They have finally come to rest in a 'holding' company. The source of manufacture is confusing to say the least. United Drug v. Theodore Rectanus Co. Hanover Star Milling Co. When the tooth powder is considered, the inconsequential amount of its sales and limited area of such sales fail to provide any adequate basis for a finding that the word 'Prophylactic' had been so widely associated in the sale of the tooth powder as to indicate a different source of manufacture from the source of the toothbrushes and establish a secondary meaning in this regard. Macmahan Pharmacal Co. Denver Chemical Mfg. It is doubtful indeed if defendant can rely on this trade-mark as to tooth powder as an adequate defense in this suit. Shaver v. Defendant, however, asserts that toothbrushes and tooth powders are not 'related' goods. In this I cannot agree. It is sufficient if they belong to the same general class of merchandise. They are 'so closely associated in the minds of the public that if they should bear the same name a consumer would be justified in concluding that they have the same origin. President, etc. Toothbrushes and tooth powder go together. They are sold together. The evidence in this very case alone indicates clearly that this close relation exists between the two. It was particularly relied upon by this competitor so that the name on the toothbrush would be of great benefit to those selling its tooth powder. It is plainly necessary, in order to avoid further confusion of the public, that a court of equity properly intervene. Otherwise this deception, and the palming off of one's goods as that of another, will most certainly continue. Goodyear's India Rubber Glove Mfg. Goodyear Rubber Co. There will also be the misappropriation by one concern of what equitably belongs to a competitor. International News Service v. Associated Press, U. From the facts presented by this record we are not astonished to find sufficiently proven that this deliberate confusion has occurred and been occasioned. Rhein and proceeded to carefully copy the color, to wit, the 'yellow,' with the 'red,' which had so long identified plaintiff's merchandise. It even imitated the division of the word 'Prophylactic' into syllables and made up packages that would mislead, or tend to mislead, any ordinary purchaser as to the source of manufacture of the tooth powder. This imitation was plainly deliberate and not accidental. Fairbank Co. Bell Mfg. With the large resources and channels for distribution belonging to this unfair competitor, it proceeded to deluge the country in over 14, drug stores and 2, chain stores, with this imitation. The fraud is so plain that even this competitor did not dare continue it. On the contrary, it now indicates that it no longer will thus mislead the public. It contends, however, that it still has the right to use the word 'Prophylactic' because of the trade-mark. It did not so discontinue after notice, and in fact not until suit was commenced. Straus v. Notaseme Hosiery Co. American Serum Co. Katzel, U. Carleton D. While color cannot alone be a ground for monopoly, if it is an extrinsic element of deceit its use can be restrained. Coca-Cola Co. Koke Co. The value of a trade-mark may be lost. Falk v. American West Indies Trading Co. Schiffer C. In other words, it would appear that this competitor, having flooded the country with what is now apparently conceded to have been a misleading can and label, nevertheless asks this court of equity to still preserve its rights in the mark 'Prophylactic. The fraud is found in the unfair 'use' of the trade-mark with its distinctive colors. I see no reasonable way of dissecting it and separating the good from the bad. It was not the desire of the plaintiff to enter the tooth powder field, proper though this may be, that prompted this litigation, but the deception of those already in the field to mislead the public and unfairly compete with plaintiff in 'related' merchandise. Nor has there been any delay in bringing suit against this defendant. Delay alone, on the facts here, would not be sufficient to bar a decree. McLean v. Fleming, 96 U. The tooth powder manufactured and sold by Dr. Rhein and those who succeeded him presented no such fraud on the public. It may well be, in view of the record, that a court of equity would have endeavored to temper its decree in accordance with that competition between two honest and friendly competitors. But where this has ceased and now it appears that a plain fraud by others has supervened, such equitable rights, if any, cannot be here considered. Nor can I find assurance, in view of what has plainly taken place, that a repetition of this fraud, or in some other ingenious way, may not take place, occasioning other suits and possibly further damage to plaintiff's business and good will. Accordingly, regardless of technical trade-mark and other legal rights that might arise on a different state of facts, it seems to me plain that this competitor and defendant cannot be heard to complain if, by its fraud, it has forfeited the protection of such technical rights in the name 'Prophylactic' in a court of equity, which it might otherwise have had, had it proceeded with fair dealing. Wood, U. Reinhard, U. The mere fact that this particular defendant finds itself a defendant in this sort of suit may be unfortunate, but it chose to aid and assist the deception and unfair competitor, and plaintiff is entitled to a decree against it in accordance with this decision. Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes. District Court, E. New York. June 11, Plaintiff seeks an injunction against the use, by defendant, of the word 'Prophylactic. As to possible extension of mark, see Loonen v. Deitsch C. This Tooth Powder Company also registered another mark in the form of a 'frustrated triangle. Plaintiff asks for no accounting in this suit. No temporary injunction has been asked for in this suit. The repentant one seeks 'in equity' to retain the tool with which it committed the wrong. Decree for plaintiff, with costs. Submit findings. Settle decree on notice. Enter Your Email. Justia Legal Resources. Find a Lawyer. Law Schools. US Federal Law. US State Law. Other Databases. Marketing Solutions.

Eastern District buying powder