raising similar issue whether assignee of right to use trademark in the United States might use trademark on products not produced by the foreign manufacturer, but concluding “[t]hat question is not here and is not decided”
How later courts described this case
- raising similar issue whether assignee of right to use trademark in the United States might use trademark on products not produced by the foreign manufacturer, but concluding “[t]hat question is not here and is not decided”
Written by the judges who cited it.
The opinion
WARD, Circuit Judge
(concurring). The relation between the English company which manufactures the belting and the plaintiff company which has the exclusive right to sell it in the United States is described throughout the record as an agency. The proof, however, as to the nature of this agency, is so vague that I think it worth while to say something on the subject.
If the plaintiff company is merely the exclusive agent of the English company to sell its product in this country for its benefit upon a fixed commission or for any sum it can get in excess of a fixed price, I think the English company is the owner, both of the trade-mark and of the business to be protected, and is alone entitled to register the trade-mark under the United States statute and to sue for infringement of it or for unfair competition in business here. On this state of facts, the bill should be dismissed.
On the other hand, if the plaintiff company purchases the English company’s product outright and sells it for its own benefit, and is given'the exclusive right to do so in this country, together with the right to use the trade-mark for that purpose which has come to indicate the plaintiff company as the source and origin of the goods, then the business to be protected is the plaintiff company’s business, and it has the right to register the trade-mark under the United States statute and to sue for infringement of it or for unfair competition in business here. Because I assume this to be the true relation between the English and the plaintiff company, I concur in the judgment of the court.