Opposition Brief — Rodeo Music Corp. v. United States District Court for the Central District of California

aS

The question presented’ for decision ‘is simply -

whether removal of a trademark case is proper under

28 U.S.C. § 1441. If'so, the District, Court for the

Central District. of California was “correct in denying

Petitioner’s motion to remand the proceeding to the

state court, and the Ninth Circuit Court of Appeals

was correct in denying Petitioner’s’ request for the is-

suance of writs of prohibition and mandamus.

Citations to the statutes involved are set, forth below.

The full texts of ‘the statutes are set forth in the Ap-

pendix.’ — . . |

SUSE. § 1121

15 U.S.C. § 1127

28 U.S.C. § 1331

28 U.S.C. § 1338

28 U.S.C. § 1441

| Summary of Argument.

A. None of the Considerations Set Forth in Supreme

Court Rule 19 Governing Review on. Certiorari

~~" Present Here.

‘The decision of the Ninth Circuit Court of Appeals

is not in conflict with any relevant decision of the

other Circuit Couirts.

Although undecided ‘by “this Court, .cach case that

has considered “the issue of removal of trademark cases

has held that removal is Proper.

'The opinions of. the Ninth Circuit Court. of remrons and the

District Court are —_ set forth in full in. the Appendix.

) eo

- B. Removal of a State Court Action is Permitted

When the Federal Courts Have Original Jurisdic-

tion of the Action and There is No Express Statu-

tory. Provision Prohibiting Removal.

28 U.S.C. § 1441 provides that unless there is an

Act of Congress to the contrary, any action of which

_the federal courts have original jurisdiction is remov-

able from the state courts.”

Original jurisdiction over Petitioner’s action is @X-

pressly conferred on the District Court by the following

- statutes: 15 U.S.C. § 1221, 15 Usp 27, 28 USS.C.

§ 1331 and 28-U.S.C°§ 1338. TS

There is no express provision in any Act. of Con-

gress which prohibits removal in heres cases.

Therefore, removal is proper under 28 U.S.C. § 1441.

i. . Baer Case that Has Considered the-Issue of Re-

moval of Trademark Cases Has Held that Removal

is Proper. as

See Ronson Art Metal Works. v. Hilton Lite Corp.

(N.D. Cal. 1953), 111 F. Supp. 691, holding that re-*

. moval of Lanham Act cases is proper. See also, Hazel

_ Bishop, Inc. v.. Perfemme, Inc. (2 nd Cir. 1963), 314 FE.

2d 399, Enralina, Inc. v. Gem Swimwear, Inc. (S.D.

N.Y. 1958), 162 F. Supp. 911, Daland vy. Hewitt Soap

Co. (S.D.N.Y. 1939), 27 F. Supp. 482, Massa v. Jiffy

Products Co. (9th Cir. 1957), 240 F. 2d. 702, cert.:

den. 353 U.S. 947, 1 L. Ed. 2d 856, 77 S, Ct. 825

(1957), and Ultronic. Systems Corp. v: Ultronix, Inc.

(D.C. Del. 1963), 217 F. Supp. 89.

Furthermore,.each of these ‘cases which considered

the propriety of remand has held that remand is im-

proper.

U

.

D. Petitioner's Conclusion That an Action Under the

Lanham Act is Not Removable is Without Merit

and. the Authorities Relied On Are Inapposite

and Not Controlling.

Although the removal statute is strictly constfued,

repeal by implication .of a right of removal is: not fa-

vored.

Cases decided under the Fair Labor Standards Act

are inapposite and not controlling. Furthermore, the ma-

jority of such cases have held‘ that removal is proper.

Petitioner's argument that there can be no removal

if jurisdiction is concurrent; cafried to its logical con-

clusion, leads to the absurd result that there is no in-

stance in which removal is proper.

28 U.S.C. § 1338(a) is not an express grant of

current jurisdiction to state courts but of original juris-

diction to federal courts, nor ‘is it an express limitation

on the right of removal under 28 U.S.C. § 1441.

pa eae

REASONS FOR DENYING. THE WRIT.

A. None of the Considerations Set Forth in Supreme

Court Rule 19 pias Review on Certiorari

Are Present Here. -

The decision of ‘the Ninth Circuit Court of Appeals,

refusing to order the District. Court to’ remand the pro- -

ceedings to the state court, is not in conflict ‘with any

- relevant decision of the other Circuit Courts. Each

case to consider the issue, of removal of trademark

cases has held that removal is proper. Cases decided

under the Fair Labor Standards Act, upon. which Pe-

‘titioner relies, are inapposite and not controling. The —

. Statutory language and other considerations: governing

removal of Fair Labor Standards Act cases do not.

_ apply to cases arising under the Lanham Act. Fur-

> ", thermore, the more persuasive cases, and the majority :

of the cases to have considered removal under the

Fair Labor Standards Act have held that removal is

_ proper.

e -

Although the question of the .removability of cases

brought under the Lanham Act has not been decided

by this Court, each case that has considered the issue

of removal of trademark cases has held that removal is |

proper. |

Thus, none of the considerations. governing review —

onvertiorari set forth in Supreme Court. Rule 19 are .

present here and the Petition should, therefore, be de-

nied. fs

“SS

ee ee

B. Removal of a State Court. Action Is Permitted

When the Federal Courts Have Original Jurisdic-. \

tion of the Action and There Is No Express Statu-

tory Provision Prohibiting Removal.

1. Statutory Authority.

Unless there is an Act of Congress to the contrary,

any action of which the federal courts, have original

Jurisdiction is removable from the state courts. The |

statutory authority for removal’ is contained in. 28

~US.C.:§ 1441, which provides in part:

“$ 1441. Actions removable generally

-““€a) Except as otherwise _expressly provided

by Act of Congress, any civil action brought in a

State court of which the district courts of °the

United States have original jurisdiction, may be

- removed by the defendant “or the defendants, to

the district court of the United States for the dis-

’ trict and division embracing. the place where. such

action is Saphes)

- 28 US.C. § 1441.

Thus, there are only tio issues to be considered. First,

whether the District Court has original jurisdiction of

the action brought by Petitioner and, second, whether

.there is any. express provision in an Act of Congress —

— would prohibit removal. |

2. The District Court Has. ae Jurisdiction Over the Action

’ Filed by Petitioner.

4

. Several statutes expressly confer 0} on the District Court

. Original jurisdiction over Petitioncr’s action. In addi-

~ tion, the courts have taken an expansive view of the ex-

“tent of such jurisdiction.

* ; % Pp

. ny Sa

Section 39 of the Lanham Act (15 U.S.C. § 1121)

expressly confers original jurisdiction on ie federal

courts -in all actions arising under the ‘Lanham Act.

That section provides:

e

“The district and territorial courts of the Unit-

ed States shall have original jurisdiction and the

courts of appeal of the United States shall: have

‘ - appellate jurisdiction, of all actions arising’ un- .

der this chapter, without regard to the amount in

controversy or to diversity or lack of diversity of

the citizenship of the parties.”

15 U.S.C. § 1121.

The intent of Congress ‘in granting original jurisdic-

_ diction to actions arising under the Lanham Act. is

explained in Section 45 of the Act (15 U.S.C. §. 1127)

which states in part:

“The intent of this chapter is to regulate com-

merce within the control of Congress by making

actionable the deceptive and misleading use of

marks in such commerce; to protect registered

marks used in such commerce from interference

by State, or territorial. legislation; to protect per--

sons engaged in —_ commerce against unfair

-competition; .

15 USC. § 1127.

In addition to and wholly separate from the basis

of federal jurisdiction established in 15 U.S.C. § 1121,

the District Court had original jurisdiction of Petition- .

er’s action under the following statutes: 28 U.S.C.

——

§ 1331, which provides,in part: , :

“(a) The district couirts shall have original juris-

diction of all civil actions wherein the matter in

. controversy exceeds the sum or value of $10,000, :

exclusive of interest and costs, and arises under

the Constitution, laws,. or treaties .of the United

States.”

“BBUS.C. § 1331.

mn

and 28 U.S.C. § 1338, which provides:

“(a) The district courts shall have original

jurisdiction of any civil action arising under any .|

Act of Congress .relating. to patents, copyrights

bees trade-marks. “Such jurisdiction shall be exclu-

swe of the courts of. the states’ in patent and

copyright cases. Tet ;

“(b) The district courts shall have original ju-

risdiction of any civil-action asserting a’ claim of

unfair competition when joined with a substantial

and related claim under the copyright, pat

trade-mark laws.”

.28US.C.§ 1338. *

“Relevant decisional law demonstrates that the federal .

courts have given a liberal construction to these stat-

utes, both with. respect to willingness of the federal

courts to. hear trademark” actions and the extent to

which the federal courts will retain jurisdiction over

the entire action presented to them. Thus, in Ramirez —

& Feraud Chili Co. v. Las Palmas Food Company (S.D.

Cal. 1956), 146 F. Supp. 594; aff'd. 245 F. 2d 874

(9th Cir. 1957), cert. den, 355 U.S. 927, 2 L. Ed. 2d

po as

A 357, 78 S. Ct. 384 1358), the extent of, jurisdiction

conferred by 15 U.S.C. § 1221 was stated as follows:

| “If plaintiff asserts "i actionable claim under the

Lanham Act for infringement or unfair compe-

tition in the use of a. trade- mark, or trade name,

jurisdiction is expressly conferretl upon this court

. 15 U.S.C.A. 1121. :

Ok ‘oR OK

“tt was the Congressiona! will’ to occupy the

"field with respect to claims arising’ from infringe-

ment of and unfair competition in the -usé of reg-

istered trade-marks and other marks defined in the - 7

Act, as well as -trade names and commercial.

" names, 15 U.S.C.A. §§ 1126 (g, i), 1127, to the

extent of Federal power under the Commerce

Clause, US: Const. art. I, § 8, cl.3,.... y |

Ramirez & Feraud Chili C o..v. Las oe ood

Company, 146 F. Supp. 594, 597, 600.

- Accordingly, jurisdiction most definitely has hee

granted to the District Court over this action under the

provisions of the Lanham Act. See, Steele v. Bulova .

Watch Co. (1952), 344 U.S. 280, 97 L. Ed. 319, 73

S. Ct. 252. ee ap

It is thus evident that the District Court has juris-

* diction in this case under several statutes and the rel-

- evant decisional law. Furthermore, there is no express

provision in any Act. of Cangress which prohibits re-—

moval is trademark cases. Since there is original ju-

risdiction in the District Court and no express statutory

prohibition, removal’ in trademark cases is proper un-

der 28 U.S.C. § 1441.’

—10—

| OF Each Case. That Has Considered the Issue. of Re-

moval of Trademark — Has Held That Removal

Is Proper. ;

In view of the explicit statutory’ provisions granting

“the district courts original jurisdiction in trademark aCe

ons, _it is not Surprising that each of the cases in

which the issue has been considered has held that

ee trademark actions are properly removable.

"Cali

hk case directly in point and cited as controlling by _

_ the District Court in the Order Denying Plaintiff’s Mo-

‘tion to Remand of February 13, 1970; and by the Ninth

Circuit Court of Appeals in the Order Denying. Writs

of Prohibition and Mandamus of April 14, 1970, is

Ronson Art Metal Works v. Hilton Lite Corp. (N.D. .

Cal. 1953), 111 F. Supp. 691. In that case, plaintiff

fe, in, the Superior Court of'the State of

ria. Defendants filed a petition for removal to

the district court and plaintiff responded with a motion:

to remand to the state court. In considering the latter

motion, the court framed one of ‘the issues before it as

follows: .

“There are certain cases which may be filed in

the state court without removal to the federal

court even when a federal question is involved. |

The second question is this: Does this case come

under that category? If the answer is in the. af-

firmative, then the ‘motion to remand should be

granted; if in the negative, then we have. a third

matter to consider.”

Ronson Art Metal Works v.. Hilton Lite Corp. *

111 F. Supp. 691, 692.

=,

/.

In denying the motion to seit and i in expressly hold- .

ing that removal of an unfair competition action in-,

volving a federal question under the Lanham Act is.

ros the court Stated: , :

ax “We come then to the second question. Plaintiff -

- ufges that even though a. federal question may be >

involved, there aré: certain cases which, when

originally filed in the state. court, cannot be re- -

moved to'the federal court; thateplaintiff has in- _

tended to bring this action under the laws of the

State of California concerning unfair competition.

There are certain cases which involve a federal

‘question, but which, if originally filed in the state

court, cannot.be removéd to the federal court. For

? example, the. Federal Employers’ Liability Act |

gives concurrent: jurisdiction to the courts of the -

United States and the state courts. 45 U.S.C.A.

. § 56. « Another example is the. Federal Natural .

Gas. Act of 1938, ° as amended, 15 U.S.C.A.

§ 717£(h), where the Act itself provides that the

’ 0 action may be brought in the District Court ‘of

the United States or-in the state courts. The Lan-

ham Act makes no such provision.

I find that this j is not one of the exceptions to the

‘general rule concerning cases where federal ques-

- tions are involved.”

Ronson Art Metal Works vy. Hilton Lite —_

111 F. Supp. 691, 6 | |

Ronson is thus directly in. ee dispositive of the ©

question presented by. the Petition. —

X\

In Hazel Bishop, Inc. v. Perfemme, co ( 2nd Cir.. af

~ 1963), 314 F. 2d 399, plaintiff siiiar a cause of action -

EE 5 Shae:

” for trademark infringement, and in addition, for breach

of contract and. unfair competition. On appeal, it was

argued that. the district court had no jurisdiction over ~

‘the case, and thus, the action had been improperly re- |

moved. The argument. wis perhaps more forceful there

since plaintiff had: abandoned. its trademark claim after

the. case had been removed. Nonetheless, the federal

court had retained _Jurisdiction.-. The —- court

stated: _ aa

“We are met at the outset with the defendants’

suggestion, made. for the first: time on this appeal,

that the district court lacked jurisdiction over this

case. The complaint was originally filed in 1957

in the Supreme Court of New York State for New

~ York County. It was removed to the district

‘court by a petition for removal filed ‘on June 4,

1957..Under 28 U.S.C. § 1441(b), a civil action

‘brought in a state court may be removed to a. fed-

eral district court: ‘without regard to the citizenship ;

-or residence -of the Parties’ if thesaction is one ‘of

which the district courts have original jurisdiction

founded on a ‘claim: or right arising under .the

Constitution, treaties ‘or laws of the United States.

* * “

“The plaintiff's ‘complaint ‘eats alleges a

cause of: action for tradem#rk infringement; Jan-

-\guage in the complaint, quoted dbove, is a near

paraphrase of _Portions of 15. U.S.C. § 1114,

which creates a civil remedy for infringement of a

- federally registered tradémark.” That. being so,”

any substantial, related claim of unfair competi-

tion was within the original jurisdiction-of the dis-:

_ trict court tinder 28° U.S.C. § 1338(b). which con-

fers on district courts ‘original jurisdiction of any

eae |,

civil action asserting‘a-claim of unfair competition

- when joned with a substantial and related. claim .

under the * *.* trademark laws.’ Under the

doctrine of pendent jurisdiction, the district court’s

jurisdiction extended also to. the claim that Miss.

Bisiiep had broken: her contract by attempting to

capitalize on the goodwill attached to her name.”

nN

Hazel Bishop, Inc. v: Bastard Inc:;-314°F. -

hace 2d 399, 402-403.

*

Petitioner’s argument that “Tt is ae. that neither

the parties nor’ the court considered the question of

whether or not the Lanham’ Act cause itself was prop- .

erly removable” (Petition, p. 26)-is without merit since

the court, in order to reach the question of whether

pendent jurisdiction was proper, must have considered

and decided in the affirmative the question of whether =

the Lanham Act action was properly removable. —

Also directly in point is the case of Catalina, ‘Inc. v.

Gem Swimwear, ‘inc. (S.D.N.Y. 1958), 162 F. Supp. -

' 911. There the’ court considered the exact question

presented here ona “motion by: plaintiff to* remand the

case. In deciding against remand, the court stated:

- “But one of the six causes. of action ‘does allege

. a violation of § 43(a) of -the Lanham Act. The

_ defendant argues that this. section creates a federal

‘right of action within the original jurisdiction of

‘the federal courts. Indeed the ‘plaintiff asserts that

it believes, in good faith, that it should be accord-

- - ed relief under the Lanham Act, but that the Court

_ of.Appeals for this Circuit has not yet at po :

Cir- —

issue. They Court of Appeals for the Thi

. cuit has held, in ‘L’Aiglon Apparel v. Lana Lobell, °

_ Inc., 214 F.2d 649, 651, that Section sand of the

>

pre ti

Lanham Acé‘is a provision which ‘with clarity. and

precision adequate: for judicial administration,

creates and defines rights ‘and duties and’ pro-

vides for their vindication in the federal courts.’

Section 39, 1S U.S.C. § 112i, 45 US.C.A. $1121,

makes it unnecessary to show diversity of stake: /

ship or any jurisdictional amount. It is true that ©

~ the Court of Appeals -for the Second Circuit has .

' not yet passed on the issue, but Chief Judge Clark,

concurring in Maternally Yours, Inc. v. Your

Maternity Shop, 2 Cir., 234 F.2d 538, 546, cited

_ the L’Aiglon’ case with approval and referred to

‘the clear federal jursdiction arising under the new

_ and quite extensive provision covering the false -

. description or representation of goods introduced

. into commerce. Lanham Act, § 43(a), 7 Gas.

§ 1125(a).’ I would: take no exception to. this

‘view in the absence of a controlling precedent to

| the contrary.

“IT hold, accordingly, that this court has juris:

diction of the cause of action under the Lanham

‘Act, which is a substantial federal claim related

to the remaining causes of action framed in

terms of common law unfair competition, over

Which this court has pendent jurisdiction. The mo- |

_ tion to remand is denied.”- |

Catalina, Inc. v. Gem Swimwear, inc., 162 F.

Supp. 911,912.

In holding that it had jurisdiction over the cause of

action under the Lanham Act and pendent jurisdic-

tion over the remaining causes of action for - unfair

competition and in denying the niotion: to remand, the

rs

/

7 ?

ro . eae oe

court necessarily held that causes of action under the ~

’ Lanham Act are properly removable.

» The propriety of removal of a trademark action was

also.considered in the éarly -case of Daland v. Hewitt

. Soap Co. (S.D.N.Y. 1939}, 27 F. Supp. 482. In that

case, an action for, among other things, trademark in-

. fringement was commenced in the state court. Defend-

“ant removed the ‘action to the district-court urging two

* ‘grounds for removal:’ (1) diversity of citizenship; and

(2) the nature of the action, one founded on the fed-

eral trademark laws. Plaintiff moved to remand the ac-

tion: to the state court. In denying” plaintiff’s..motion

to remand and in holding the ‘action removable on both

grounds, the court stated with si it to removal found-

ed on the trademark laws:

“The case was properly removed on ve further

ground that it was a suit-for infringement of.

a trademark fegistered under the United States

Trademark Act, and this irrespective of ° the

- amount involved. By section 17 of the Att (15

. UCLA. § 97), the district court is given original

- jurisdiction ‘of all suits at law or in equity respect-

ing trade-marks registered in accordance with the

’ provisions of this subdivision of this chapter, aris-

ing thereunder, without regard to the amount in

controversy.’ Section 34(7) of the Judicial Code,

28 U.S.C.A. '§ 41(7), is to like effect. The suit -

being one that.might have been brought originally

in the district court, it may be removed to the dis-

trict court when brought in the. state courts. Madi-

sonville Traction Co. v. St. Bernard Min. Co., 196

US. 239, 25 S. Ct. 254,-49 L.Ed. 462. - The.. °

plaintiff makes the point that the petition for re-

a ee

moval did not mention: this ground. The ground

appeared on the face of the complaint, arid it was

specified in the .affidavit filed with the petition.

The affidavit is. to be taken as part of the peti-

tion. This was a sufficient development of the

point that the suit was one for infringement of

trademark registered under the’federal statute and

was therefore removable. See Yulee v: Vose, 99

U.S. 539, 545, 25 L.Ed. 355;-Powers v. Chesa-

peake & Ohio R. Co., 169° U.S. 92, 101, 18

S. Ct. 264, 42 L.Ed. 673.” ° ~

Daland vy. Hewitt Soap Co., 27 F. Supp. 482,

483-484;

Thus, contrary to Petitioner's assertion (Petition, p. 26),

the issue of the removability of a trademark action

was argued by the parties and considered by the court.

The court's conclusion that a suit for infringement of a

trademark registered under the federal statutes is re-

mdvable is-not, as Petitioner asserts, dictum, but was *_

an express holding by the court.

See also. Massa v: My Wodlace Co. (9th Cir. 1957),

240 F. 2d. 702, cert. den..3§3 U.S. 947, 1 L. Ed. 2d

856, 77 S. Ct. 825 (1957), an action which in many

ways parallels the case at bar. There suit was instituted

for unfair competition and for infringement of a regis-

tered trademark. The case was removed to the federal

district court from the California state court, and de-

fendant counterclaimed for an order of rectification of

the registration’, in favor of defendayt. The court’ re-

tained’ jurisdiction, determined the right to registration

and entered an order directing the Commissioner of Pat-

ents to rectify the records of the United States Patent

Office. -

—17—-

See also iden Systems Corp: v. Ultronix, Tice.

(D.C. Del. 1963); 217 F. Supp. 89, where the court

accepted removal of a trademark action.

Thus, cach of the cases in which ‘the issue was

considered has held that trademark actions are re-

movable. In addition, each of the cases which has.con- _

‘sidered the question of the propgicty of an order re-- °

-manding such an action to the state court has held

_that remand is improper. Counsel’s research has dis-

~ closed not a single case denying.the right of: removal

in an action brought under the Lanham Act. Nor

-. has Petitioner cited such a case in its Petition. In- |

stead, Petitioner. has been forced to rely on a‘ tor-

tuous reading of Judge: Friedman’s opifiion in Ronson:

Art Metal Works v. Hilton Lite Corp., supra, in an at-

‘tempt to justify its position. However. all of the relevant.

authorities are diametrically opposed to Petitioner’s po-

sition and support the principle that removal of an ac-

tion brought under the Lanhain Act is proper.

See 180 2 Cyclopedia of Federal Procedure, where it

is stated: : :

“Similarly, a case is properly removable on the

ground that it is an action for infringement of a

trademark registered under the United States

Trademark Act, and this irrespective of . the -

amount involved.”

2 Cyclopedia of Federal Procedure, p. 233.

In the face of ‘this. virtual unanimity of. authority, Peti-

tioner is able to cite not a single case or authority in

“support of its position.

+

D. Petitioner's Conclusion That an Actitn Under the

Lanham Act Is Not, Removable Is Without Merit

and the Authorities Relied on Are ieeaneuae and

. Not Controliing.

The argument presented by Petitioner in support of . . ‘

its af conclusion that actions under the: Lanham Act a

are “not removable is nothing more’ than a rehash of

the argument presented to the District: Court on Pe-

titioner’s motion to remand and to the Ninth Circuit on

the petition for writs of prohibition and mandamus.

Short shrift was given to the argument by both the

District Court and the Ninth Circuit. Both cited the

very case relied on by Petitioner in denying the mo-—

tion and petition and ruling ‘that such cases are proper-

ly removable. .

Petitioner begins its argument by referring to the

fact that removal. statutes have been construed strictly, .

and quoting several authorities to that effect: Had Peti-

tianer but. read a bit further from the portion it quoted

in Moore’s Federal Practice (three pages further to be ~~ /

exact), a somewhat more accurate presentation of the

rules to be applied where a removal is questioned

would have been obtained. Moore, after indicating .that |

_the principle of strict construction had ‘been generally %

followed, hastens to point out that:

“The. removal statute should, therefore, be fair- .

~ ly applied. Repeal by eee: of a ‘right of re-

/ moval-is not favored. * * * * And a right of femov-

al should not be-denied to a defendant because -

of a super-abundance of caution on the part of the

district judge: * * #*” ( Emphasis added). 1A

Moore’ s Federal Practice © 0.157. :

6» e = ' /

% —19—

It is doubtful whether there are many clearer cases

allgwing removal than the instant case, and similarly,

whether: there are many more blatant examples ,of an

attempt to repeal by implication the right of removal.

Petitioner, then goes on to make an exceedingly -novel .

argument. First, it spends several pages, quite unneces-

sarily, establishing that state courts have concurrent

jurisdiction over Lanham Act actions.” Second, Peti-

tioner argues that’ since jurisdiction is concurrent, no

removal: is allowed. Next; Petitioners by the ‘most

tortuous reasoning, attempts to distinguish Ronson Art

Metal Works v. Hilton Lite Corp., supra, and the other

cases holding that remoyal of a Lanham Act action

is proper and that remand of such an action is improper.

As demonstrated above, the. cases without’ exception

support the position of Respondents-Real Parties In

Interest and are diametrically opposed to the position

urged by Petitioner. !

ad

-Petitioner next states’ that.a “long line of cases”

decided under the Fair Labor Standards Act provides

additional (additional to what is not readily ppeer

ent) support for its position.

' 2In support of its argument. that jurisdiction of Manag Act

_ cases is concurrent, Petitioner cites (Petition, p. 23) the ‘case of

United States v. Steffens (1879), 100 U.S. 82, as holding that

the Trademark Act of 1870 was unconstitutional since it attempted

to confer exclusive jurisdiction on the federal courts in trademark

cases. Actually, the. Court held that since there was no express

constitutional provision authorizing Congress to legislate regard-

_ ing trademarks (as there is in the case of patents and copy-

_right) the only constitutional provision ‘under, which Congress

could derive authority to regulate trademarks Was the Commerée

Clause. Since the act in question purported to regulate all trade-

marks, whether involved in interstate. comnierce or not, the Court

‘held it unconstitational as beyond the power of Congress: The

case cledrly does not stand for the proposition that concurrent

jurisdiction in trademark cases is constitutionally mandatg tgd. In

_ any event the case’has no relevance to a removal question.

ag

20 |

Turning first to the Petitioner's reliance on.the Fair

Labor Standards Act, and cases thereunder, it is most

interesting to note that all but two of Petitioner's cases

are prior to the Code of 1948. Regarding the law in

the area, Moore states: .

“Prior to the Code of 1948 there were con-

flicting decisions © ‘as to whether removal of a

state action Was prevented by the provision of the

Act that the employee’s suit ‘may be maintained .

in any court of competent jurisdiction.’ This am-

biguous plirase is certainly not an express - provi- |

sion against removal within the meaning of § 1441

of the Code of 1948, and the conflict ha$ appar-

ently been settled in. favor of removal.”

1A Moore’s Fed. Pract. © 6.167|[5].

Reading the Petition one would have no inkling -that

the majority of the cases were contrary to the “long

line” relied upon by Petitioner.’ :

Even if the cases relied upon by. Petitioner were

still the law, however, the result in this case would not |

be. altered in any way. The Fair Labor Standards Act

does specifically provide that an action brought under

it may be “maintaincd” in any court of competent

jurisdiction. It the word “maintained” is read -to

mean prosecuted through to conclusion, it is at least

arguable that Congress had expressly prohibited re-

moval of Fair Labor Standards Act cases. Of course,

there is no such provision in the Lanham Act..As the

quotation from Moore’s Federal Practice cited above

3Johnson v. Butler Bros. (8th Cir. 1947), 162 F. 2d 87; cited

as the “leading case” by Petitioner (Petition, pp. 27- 28), no

longer has any vitality even within the Eighth Circuit. Sgé Nis-

wander v. Paul Hardeman, Inc. (E.D. ae. 1963), 223 F. Supp.

74. ; .

eer. a

- demonstrates, the better reasoning is that even the lan- |

guage of thé Fair Labor Standards Act is. not specific .

enough to prevent removal. Thus, the cases cited’, by —

Petitioner.-are neither apposite nor controlling. And _

even if these cases were an accurate statement of the

law, they would in no way support the proposition for

which they are advanced by Petitioner.

- Petitioner’s fundamental error is, however, the con-

clusion thé if jurisdiction ‘is concurrent, there can

be.no removal. The inherent fallacy of Petitioner’s con: _.

clusion is. readily .apparent on closer. examination.

There are only three alternatives with respect to federal-

state jurisdiction: (1) exclusive jurisdiction in the fed-

eral. courts; (2) exclusive jurisdiction in the state courts;

and (3) concurrent jurisdiction in both state and fed-

. eral courts. In the first case, there can-be no removal

given the derivative nature: of removal jurisdiction. HH.’ .

the state Scourt does not have. jurisdiction of-a matter,

it cannot be removed. |

“The jurisdiction of a -federal court over an

action on removal from a state court is in a cer-

tain limited*sense a derivative jurisdiction and re

moval only brings to.the federal court what was

pending ‘in ‘the state court from which the cause

was temoved. It follows that the existence of juris-

diction in the federal court over a cause taken

to it from a state court must rest to some extent

on the jurisdiction of the state court, and that if

* the -state court had no jurisdiction the federal —

} court can have none, although it might, by some

other action originally brought or removed, have

acquired | jurisdiction over the. controversy Berwin

‘the parties. * * * :

bs —22—

“Wherever there. is a total absence of jurisdic-

tion over the subject matter in the state court, so

‘that it has no. power to entertain the action ‘Yn

which the controversy is sought * to be litigated in

‘its then existing or any other form, there can be °

no jurisdiction in.the federal court to entertain -it

on removal, and such jurisdiction; being of the

subject matter, is not. of such~a character as may

be waived by .the parties or acquired by acquies-

_cence, stipulation or consent on their part.”

2 Cyclopedia of Fed. Prec. (Gd Ed. 1965 Rev:d),

§ 3.11, p. 198, ‘pp. 198-200.

.In the second case, no removal would be allowed

since. such an express statement that ‘state courts can

hear the action would, under Petitioner’s analysis, be

_ sufficient, to prevent removal under 28 U.S.C: $1441.

It is thus obvious that removal . inapplicable to cases —

in which jurisdiction is vested exclusively in either the

state or* the federal courts. Therefore, the. only in-

stance in which removal is proper is where jurisdiction _

‘is concurrent. | However, it is precisely in this situation

that Petitioner concludes tffat removal is improper.

Carried to its logical conclusion, Petitioner’s argument

— leads to the absurd result that there is no instance in

which removal is proper. ,

Petitioner's argument ( Petition, p. 20) that. there is

an “express” grant of concurrent jurisdiction to state

courts to hear and determine Lanham Act actions” is,

of course, totally: without foundation. Petitioner relies

on 28 USC. § .1338(a), which merely makes jurisdic- 3

tion exclusive of ‘the courts of the states in patent and

copyright cases but omits to make trademark cases sim-

jlarly exclusive. The state courts derive jurisdiction

f

—23—

over trademarks not from anything stated in an Act

of Congress, but rather from the: fact ‘that, trademark

rights arise. at common law from use and appropriation

and not from federal registration.’ Congress, in enact-

ing Section 1338(a) did not grant anything to the states,

but merely refrained from taking «away the Jurisdiction

the states already had. To argue that this rises to the

level of an express grant is simply not tenabk.

In.its Order. of ay 1970 the Ninth Circuit-

Court of Appeals stated with respect to Petitionet’s argu-—

ment: . | [C= :

“This contention is in error.: The express grant

.Of § 1338(a) is not of concurrent. jurisdiction to

state courts, but of original jurisdiction to: federal ©

courts. Ronson Art Metal. Works v. Hilton Lite oe

Corp. 1AVF. Supp. 691 (N.D. Cal..1953).”

Indeed, peibeiscce has conceded that concurrent juris-

Gietinn’ under 28 U.S.C. 1338(a). is implicit rather than

express (Petition, pp. 12, 36). Furthermore, the lan-

_ guage of 28 U.S.C. $1338(a), even-if it could be can: |

struedas an express grant of concurrent jurisdiction, . ~

can in’ no way be construed as an express limitation

on the right to removal within. the meaning of 28

'. U,S.C: §1441.

?

It is apparent that, Petitioner has erroneously ana-

lyzed the significance of the effect of concurrent juris-

diction, failed to distinguish the numerous cases specif-

ically holding that cases under the Lanham Act are .

removable and relied on authorities which are’ inap-.

posite and not controlling. : |

- #See Petitioner's quotation from Callman’s Unfair Competi-

tion and Trade raat § 90. 2 (2d ed. 1947), at, page 21 of the

Petition.

=o | ee a

; ts Conclusion. mig

Since the _= his, original jurisdiction of

this matter and.the remova] statute.is clearly- applicable,

there can be little doubt that the removal is proper. It

is therefore respectfully submitted that tlie. Petition for a

Writ * Certiorari should be denied. ev Py

Respectfully submitted,

. SAMUEL O. PRUITT, IR.

634 South Spring Street,

; - Los s Angéles, California 90014,

q - pone for Respondents-Real Parties

In Interest Toyo Radio Compaw ,of

America, a corporation, Toyo Ratio |

Co., Ltd., a corporation, and Mitsuo.

Fukuyama. ae

>

® hee

a by de -

IRWIN F. WoopLAND, ~~ Poh Se ae

Gary D. STABILE,

JOHN J..SWENSON,

_GiBsoN, DUNN: & CRUTCHER,

634 South Spriffg Street, oe 3

‘Los Angeles, California 90014,

. DIANA J. AUGER,

JOHN J. CASLIN, JR.,

KANE, DALSIMER, KANE,

SULLIVAN & KuRUCz, /

420 Lexington mn Avenue, . °° | -

_ New York, New York 10017, -

WATAI & Wires. Haas ts Poa) cee somal 2

GEORGE WATAI, a3 |

16020 South W estern “‘enein,

- Gardena, California 90257,

Of Counsel for Respondents-Real »

Parties In Interest.

4

-@ 2

_APPENDIX. comes

; No. 25.515 |

IN THE. UNITED STATES. DISTRICT COU RT

OF APPEALS. FOR THE NINTH CIRCU IT.

Ropeg Music Corp. a California corporation, doirig

business’ as BELAIR or RPRISE S. :

; ee oe Petitioner,

VS.

UNITED STATES*DIsTRICT COURT FOR THE CENTRAL

DISTRICT, OF CALIFORNIA, and the Hon. Jesse ‘W.

_ Curtis, .UNITED .STATES DIsTRICT- JUDGE FOR THE.

CENTRAL DISTRICT OF CALIFORNIA, *

Respondents,

| ie oe: Se

Toyo Rapio CoMPANY OF AMERICA; ‘a corporation,

‘Toyo Rapio Co., LTD., a. corporation, and Mitsuo

FUKUYAMA, — E>

| Real Party in Interest.

Order Denying Writs of Prohibition and Mandamus.

Filed April. 14, 1970.

Before WRIGHT and TRASK, Circuit ine

Petitioner has filed in this court its petition for a.

writ of mandamus to compel remand of the captioned

cause. to the state courts of California.

The ‘action-as brought in the state court included

five causes of action. Four appear to-be brought under

California law. The fifth states a: claim under the Lan-

ham Act, 15 U.S.C. § 105. Relying on 28 U.S.C.

ne pees ee

_ § 1441 \(c), which permits ‘removal of the entire

casé when a removable claim is joined with. other, non®

removable claims, the respondent removed the case to

the district court, and the hatter. denied a_ motion for

.

2 .

remand. © | ok

: :

’ Petitioner contends that reméval. was improper, and

argues that 28-U:S.C. § 1338 (a) constitutes an.express

cengressional grant - concurrent jurisdiction to state

courts over trademark matters, and hence an “express -

exception to the removal statute, 28 U. sc $1441. This.

contention is in error. The express grant in’ § 1338(a)

_ ig not of concurrent jurisdiction to state courts, but. of

original jurisdiction to federal courts: Ronson Art Met-

al Works ¥. ‘Hilton Lite Corp., 111. F. Supp. 691

(N.D. Cal. 1953). " ;

The petition-is denied. — rent ee rete

/s/ Edgar A. Wright

_/s/ Odell M. Trask

j

«@ F ~

Q

<

3 f 5 3 ‘ une ; oe y ‘. 8 ke = 5 hey s

- “UNITED STAGES SisTRICT COURT se

ae CENTRAL DISTRICT. OF €ALIFORNTA, 0

; “ ‘ te _ = a “4 > ; : oa

te) No. 5 e8.246a WC Wane ae tn

; i 2 amen , a; ‘pas 3

~ RopEO Music’ ‘Corp. a’ Catton’ corporation, diva eee

BELAIR ENTERPRISES, |

cm. | ere Caney °9 ‘ Rispondgh.. eee

tant e vs. Ws © q

CG . ~#

%

Toyo RADIO’ Contpany OF AMERICA,” a corporation, . 17 & 9

Toyo RApIo Co. LTD., a” corporation and MIrSvO 4 eae es

ee | sated ee, SY EL : Sain 14 |

c . e *.

<4 ° . Defendants-Petitioners.- e° . & cr

y . % . = . “ i 2

Bar Oe ice ; “: : . . a5 tS

a . * 2e09 . ‘ ot ¥

; —_— — S Motion to Remand. - i

ear ee AD, a8 » '¢

<= . ig :

Filed Feb. 13, 1970. : staan oe ot Pt

; = So -@ ° o @ “gh F

Tht plaintif moves to "remand ‘this actions to the -

state court, “where it was “originally: commenced | cand - ; on Ds

‘from ‘which it has recently been removed upon defgnd- ” iad

ant’s petition. The complaint is essentially one for tin- ‘ 48 Ps

. pe aes =

fair competition and- trademark infringement and “seeks aia

relief both under California: laws and. als@ under the »,.

provisions of the Lanham Act 15 U.S.C. $051," i Bos. 3 - 3

seg. The coimplaint also contains a clatin for. breach. 3 x

* contract and one for fraud, the defendants -comtend

that since the complaint involves a question under -the , 0) :

: . 2 ¢

"Lanham Act, one oyér ‘which this court has original > erate.

jurisdiction, . its en here~ was - , Propet gndér 28. < Wek

© ; Ae i i . ‘ ; Cx .

oS ‘ Pe {2 ;

: Q

oy é = e

was sp vara. oe

ae # a \, " 2

Wit

USC: s 1441. and that it ‘should- not ‘hee remanded.

> > “With this weagree. This removal section provides:

e ie : o *(a) Except: as ptherwise expressly provided by

oe 5 ad Act of Cofgress, any ‘civil action brought; in a

a ae State court’ of which . the * district caurts of the.

Ca, we ’ United Brates have or inal jurisdiction, may be .

a i, removed | by the defendant. .

We ““(¢). Whenever a separate se independent claim

: s cause of actian, which would be removable

‘Cif: Sued- upen alone, is joined with one or mare

: otherwise yon- -removable | ¢laims or causes of -ac-.

v tiGh, “the “entire” case may be removed ‘and the

« distrigh codrt may determine al] issues. therein, or,

i its discretion? may remand afl matters not other-

2 me. 4

,.

nv @

°

fy ; yee 2

- >

= | gewige within its original furisdigetion™: Sie Samy

y It ‘is clear ‘that. this action, confaining as it does a

¥ tause. of action ‘under’ the provisions of the Lanham

Rey he “ ~ Act, is @ne Over which, the federal «court has’ original

SP ea jurisdiction. ‘There is. no_ Gontention to the ‘contrary.

*», Plaintiff contends, however, that j in case of ainfair com-

2 ” Spetition. for . trademark infringement both the state’

3 so . and 6federal courts have concyrrent ‘jurisdiction and

ees 37. fa where this is true, a plaintiff ‘should be permitted

oa ‘to choose the forum: Having chosen the’ state court in

~ 7 _, this case, the: plaintiff maintains its removal is improper.

ahead There, is no authority}? however, to support this ‘con-

‘ tention. Plaintiff, first ites, Couch v, White Motor Co.,

.” 290 FeSupp.. 697 ‘at 699 (Ww. D.Mo. 1968). This, how-”

re “ever, was..a question of diversity where it -was con-

a ptnded ‘that removal was imptoper: becdyse the joinder.,

as : “of a “resident ‘defendant’ was done fraudulently- for the |

purpose of defeating, federal jurisdiction. Where there

was .somé- doubt: as to}, the ue of the petition.

+

LY

-

a: at DS

\ P>.

9 . : c

Cc

c

v <b

for, saccanas the court. field | that ‘unless it -was clear’

-from ‘the petition for removal that- the federal court.

had jurisdiction, : the case should not be taken from

the state-court, and ultimately held that the uses i

for removal was defective.’

Plaintiff also relies on Wilkins 1 y. Renault Soitthwest, ‘

| i” ae 29 F.Supp. 647 (N.D.Texas 1964). This was an |

-action under the .Fair- ‘Labor, Standards Act where the-.

plaintiff souglit to recover Overtime and «liquidated

damages. Construing. the: provisions of the: Act provid-

ing that such an action could. be brought in any court

of competent jurisdiction, the court held that both state,

_and federal courts. had concurrent jurisdiction | and that

an action. once: commenced in state “court could not,

“over. plaintiff's objection, be ‘removed. But: the -rile in.

* the ‘cases involving violations of the Fair Labor Stand-.

ards Act is based’ upon an interpretation of the’ unique | “a

features of that’ “Act, which are not \ applicable to thet

Pprovisions‘¢ ‘of the Lanham Act... Sef ;

“Y

‘The court. in the Wilkins case quoted from the fi

aT ree

ate report, as follows: ». ~

.

on

‘s ‘Congress itself has recognized the inadvisa-

bility of permitting removal of cases arising: under

its ,own laws : ‘Which, are similar ‘to: Ahe workmen’s -

compensation acts of. the Stages. ‘In ‘the Jones Act,

the Fair Labor Standards Ad, and the Railway

Pes Employers’ Liahjlity Act, alf of which’ are in the

nature of workmen's compensation ‘cases, the Con-

. gress has:given the workman the option of filing

his case ‘in: Sither the State court or the Federal

court. If filed in the State courts” the: law prohibits

removal to the Federal court. This propdsed legis- a

lation -acconiplishes “this same purpose. and. grants |

‘ ay

y

se . é , os ; : a ~ ea

the same privilege’ to. workmen who are entitled

to compensation under the State workmen’s com- .

‘ ' pensation act—that is, the workman has the op-

_ ,. ‘tion to file his case in either, the, Federal or the

' State court. If he files in the State’ court it-is not.

a°5 se -

removable to the Federal Court: <~

It seems clear that the removal of an unfair compe-

tition action involving a federal question under the ‘Lan-. Oe

~ ham Act is proper. Ronson Art Metal Works vy, Hilton i

- Lite Corp., m1 F.Supp. 691 (N.D. Cal. 1953). |

-The motion to remand iS, therefore, denied.

’ Dated: February 13, 1970.

/s/ Jesse W. Cuytis

Ns JESSE W. CURTIS. a oe

: | _ United States District Judge . a

i eae ee

ow oo

\: Statutes Involved.

\ 45 U.S.C. §.1121.

" § 121. Same; jurisdiction of F ederal « courts,

The district and territorial courts of the United States

shall have - original’ jurisdiction and the’ courts of ap-

peal of the United’. StateS shall have appellate jurisdic-

‘tion, of. all actions ‘arising under this ‘chapter, without ©

regard to the amount in controversy or to diversity lor

lack ef diversity of cua ues of ‘the parties. July

5, 1946,.c. 541, ‘Title VI. § 39, 60 Stat.’440; June 25,

"1948, t- 646, §§ T,-32(a), “62 Stat.. 870. 991; May 24,

1949, c.. 139, § 127, 63 Sfat. 107. : <

» 15 US.C, § 1127.

) § 1127. Tonsit uction and definitions: intent af chaptey

In the construction of this chapter, . unless: the . con-

“trary is plainly apparent from the context—

a

The United States includes and embraces all terri-

> tory which is under its jurisdiction and control.

~ The word “commerce” means ail commerce’ which ;

* may lawfully be, regulated by Congress.

The term “principal register” refers“to ‘the register .

. provided for by ‘sections 1051-1072 of this title. and

the term “supplemental register” .refers to the register

- provided for by sections 1091-1096 of, this title.

- The term “person” and any other word or term used -_

to designate the applicant or other entitled to a benefit——_. :

or privilege or rendered ‘liable under the provisions of .

this chapter. includes a 4uristic person as well as a-

natutalaperson. The’ term, “juristic person” ificludes a.

. firm, corporation, unjon, association. or other organiza-

tion capable of-suing and being-sued in a court of law.

ee ig

~ ae

?

of Patents.

\

or ee

The’ terms “applicant” and “registrant”? embrace the

. legal representatives, predecessors, successors and as-

signs of such ‘applicant or segistrant. © : re

The term’ “Commissioner” means the. Commissioner

; Cree &

_ The term “related company” means any person’ who

legitimately controls or. is controlled by the registrant or |

* applicant for: registration. in respeet to the: nature and:

which the mark i is used. °

quality of the goods or services in connection with

The terms “trade name” and “commercial name” in-

clude gindividual names and surnames, firm names -and

"trade names used by manufacturers, industrialists, mer-

chants, agriculturists, and: others to identify’ ‘their °

_ businesses; vocationsc—or occupations; the names. or’ ’

titles lawfully. adopted and used by persons, firms, as- ‘

sociations, corporations, companies, unions, and any |

‘manufacturing, industrial, commercial, agricultural, |

or other organizations engaged in trade or, commerce

Q ..

|

and capable of suing and being sued in a court of law.

The: ‘term “trade- mark” includes any word, name,

symbol, or device: or any combination thereof adopted’ -

and used by a manufacturer or merchant to identify his.

_goods and distinguish them from those manufactured or

“sold by. others. :, oe . th

The term “ ‘service mark” means a mark used in the |

sale or advertising | of services to identify the services

of one person. and distinguish them from .the services °

of others. Titles, character names and other distinctive

features of radio or television. ‘programs. may be regis- *

tered as service marks notwithstanding that they. or the

programs, may advertise the goods of the sponsor.. “

. 7 .

9—

#

"The term “certification mark” means a mark used -

‘upon or in connection with the products or. * services .

of one or more persons other than the owner of the

mark to certify’ regional -or other origin, material,

-mode of snanufacture, quality, accuracy” ‘or ether char--

acteristics of such goods or services or ‘that the work °

or labor on the goods or services was pefformed by

members of a union or other organization. ein

The term “collective mark” means a. trade-mark or

service mark used by the members of a’ cooperative,

‘an association or other collective group or organization

.. and ‘includes marks “used to indicate membership in a

union, an: association or othér organization.

The term “mark” includes any. trade-mark, ser

’ mark, collective mark,. or certification mark entitled

5 registration under this chaget whether rept or

mot. .}.. ae Ss

For \the purposes of this heanes a mark shall ‘be.

deemed to be used in commerce (a) on goods. when it is.

placed in any manner ‘on the goods or their containers

or the displays associated therewith or on the tags or

doemcheeseeess thereto. and the goods are sold or trans-

ported in commerce and (b) of services when it is used

or displayed in the sale or advertising of © services and .

thé sérvices are rendered in commerce, or the services

are rendered in more than: one State or in this and a

| foreign country and the person» rendering the ‘services:

is engaged in commerce in connection: therewith.

A ‘mark shall be deemed to be “abandoried”—

(a) When its: use has been discontinued with intent - ;

not to resume..Intent not to resume may be inferred

from 5-4 Nonise for. two consecutive years

‘ Shall be prima facie abandonment. :

‘

siete *

h

pmien -

ne gi. | .

(b), When any course} of conduct -of | the registrant,

including acts of omission as well as commission, causes —

the . mark- to lose its significance as ah: ‘indication of

Oe. K

‘The term “colorable imitation” ‘medias any mark ©.

whic so resembles a registered mark as to be likely to

_ Cause confusionor mistake or to deceive.’

The term “registered mark” means a- mark. regis-

‘tered in the United Statés Patent Office under this chap-

ter,or under the Act of March 3, 1881, or the Act of

- February 20, 1905, or the Act’of March 19, 1920. The

phrase “marks registered in the Patent Office” means .

‘registered marks.

a term “Act of March.3, 1881”, “Act of: February

, 1905”, or “Act of March 19, 1920,” means the

lo Act as amended.

A, “coviiterfeit” is a spurious mark which is identical

wit, oF substaritially indistinguishable from, a regis-._

tered mark. | = : o

Words used in the singular — the plural att

vice versa. :

The intent of this chapter im“ regulate commerce

within the control of Congress by making actionable the

deceptive and misi¢ading use of marks in such com-

merce; to protect registered marks used in such com-

merce from interference by State, or territorial legisla-

tion; to protect persons engaged in such commerce

against: unfair competition: to’ prevent fraud and. de-

ception in such commerce,by the use of reproductions,

copies, counterfeits, or colorable limitations of regis-

tered marks: and’ to provide rights and remedies stipu-

lated by treaties and conventions respecting trade-marks,

~—

-trade names, and unfair competition, entered into be-

tween the United States. and foreign nations. July 5,

1946, ¢. 540, Title X, § 45, 60 Stat. 443; Oct. 9, -

1962, Pub. L. 87- 772, § at, 76 Stat. 4.

ve /28 USC. § 1331.

§ 1331: Federal question;,amount in controversy; Costs

<@) The district courts shel have original jurisdiction

of alt civil actions wherein. the matter in controversy

‘exceeds the sum or value of $10,000, exclusive of in-

terest and costs, and. arises under the Constitution, laws,

or treaties of the United States, |

(b). Except when express provision therefor fs other- .

wise made in a statute of the United States, where

the plaintiff. is finally adjudged té be entitled to re-

cover less than the sum or value of $10,000, com-

puted without regard to any setoff or.counterclaim to

which the defendant may be adjiidged to be entitled, :

and exclusive -of interests and costs, the district court

‘may deny costs to the plaintiff and, in addition, may

impose costs on the plaintiff. June 25, Lies c. 646, 62

Stat. 930: July 25% 1958, Pub.L. 85- tof, 1,-72 Stat. -

3 415. cS

: —-28 US.C. § 1338. 3

§ 1338. Patents, copyrights, trade-marks, and uatfair

‘ competition | | a

_ (a) The district courts shall have original jurisdiction

of any civil action arising under any Act of Congress

‘relating to patents, copyrights nd trade-marks.

Such jurisdigtion shall be exclusive of the. courts of

the states ian and copyright cases.

(b) The district. courts shall have ‘original. jurisdic-

tion of any civil action asserting a claim of unfair ¢om-

z “

—12—

petition When joined with a substantial and related

claim under the copyright, patent or trademark laws.

June 25, 1948,'c. 646, 62 Stat. 931.

28 U. S.C. s 1441:

“8 1441. Actions removable generally

(a) EXcept as otherwise expressly provided by Act

of Congress, any. civil action, brought in a State court

of which ‘the district courts of the United States have:

original jurisdiction, may be removed by the defendant

or the. defendants, to the district court of the United

States for the district and division embracing the place

where such action is pending.

‘

(b) Any > civil action of which the district courts

' have original Jurisdiction founded on a claim or right

arising under the Constitution, ‘treaties or laws of the

United States shall be removable without regard to the

citizenship or residence of the parties. Any other such

action shall be removable only if none of the: parties in

or interest properly joined and served as defendants ‘is a

citizen of the State in which sch action is brought.

‘(c) Whenever a separate and independent claim or

cause of action, which would be removable «if sued

upon alone, is joined with one or more otherwise non-

removable claims or causes of ation, the entire

case may be removed and. the district‘court may deter-

mine all issues therein, or, in its discretion, may re-

mand all matters not otherwise within its original juris-

diction. June 25; 1948, c. 646, 62 Stat. 937.

ba

*