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petitioner asks simply that he may be permitted to submit his contentions to the court and I do not see how the interests of the other parties. will be jeoparded by allowing him to do so. That he is a necessary party is not apparent but that he is a proper party is sufficiently clear. With the petitioner on the record all the interested parties are before the court and a decree can be entered determinative of the entire controversy. It is for the interest of all concerned that the questions still in dispute between the parties shall be decided in the pending suit: to commence a new suit will only protract litigation and increase expense.
It is undoubtedly true as a general proposition that there can be no contribution between joint tort feasors, but this is a question which should be determined on pleadings and proofs and not upon a motion of this character. The petitioner asks to be subrogated to the rights of the complainant: this also is a question which should not be decided in limine, but is for the trial court to determine. So far as this motion is concerned, the question is a simple one. If the petitione has any rights in the premises they should be determined in the pending litigation and I am of the opinion that the court should not decide at this. stage that he has no such rights.
The motion is granted.
NEW YORK HERALD CO. V. STAR CO.*
(Circuit Court, S. D. New York. March 26, 1906.) TRADE-MARKS AND TRADE-NAMES—TITLE OF PUBLICATION.
Complainant held entitled to protection in the trade-mark "Buster Brown” as the title of a comic section of a newspaper it being shown that it was the first to use the title, and that it was so used exclusively by complainant and its licensees for such length of time as to give it a. proprietary right therein. In Equity. On motion for preliminary injunction. W. A. Megrath, for complainant. Herbert Knight, for defendant.
LACOMBE, Circuit Judge. This is a suit solely to restrain infringement of a trade-mark; no question as to copyright or as to unfair competition is presented. The trade-mark which complainant claims to own is the words “Buster Brown” as a title or heading for a comic section of a newspaper. No claim is made as to any particular style of illustration, only to these words used in this connection.
It is not disputed, it could not be seriously disputed under the authorities, that the title of a publication may become a trade-mark. Who was the first person to invent the name or to suggest its use in some other connection is not material, the question is "who first used it as the title of a comic section of a newspaper ?” That the complainant was the first so to use it is most clearly and positively shown by the affidavits. The suggestion that neither complainant nor defendant uses it as the title of a comic section; that the real titles of the pages referred to are respectively “New York Herald ComicSection” and “Comic Section of the New York American and Journal” is unpersuasive. A comic section may consist of a single page as well as of four pages; it may be a subsection of a larger section also comic, but it is none the less a “section.” Both papers, the Herald for several years, and the defendant recently, have published each a page in their Sunday editions containing comic pictures and entitled “Buster Brown." Whether or not the original draughtsman of the so-called “Buster Brown” pictures was in the employ of the Herald is immaterial; concededly it bought them from him, paid for them, published them (whether with or without retouching, coloring, etc., is immaterial) and headed the page on which they were published with the words “Buster Brown." Nor is there anything in the suggestion that plaintiff has abandoned the trade-mark because for a few Sundays it printed the pictures, and their title on the fourth page instead of the first page of the colored comic section.
* Affirmed by Circuit Court of Appeals, 146 Fed. 1023.
It appears that certain other newspapers have used the words as a title for comic sections in their Sunday editions, but in every instance this was with the consent of complainant and upon paying it for the privilege. What proceedings have been taken or are now pending touching registration of the trade-mark are not important; complainant has shown title to the trade-mark, irrespective of the statute. Injunction pendente lite may issue restraining the use of the trade-mark, either in the newspaper or in advertising matter, which may indicate or imply that defendant is about to publish a “Buster Brown” comic section. This relief extends only to the words “Buster Brown”; Mr. Outcalt, or any one else whom the defendant may choose to employ, is entirely free to design, draw, color, and publish comic pictures of the same kind as those to which plaintiff has prefixed that title, provided only that they do not so closely imitate pictures already published and copyrighted as to be an infringement thereof.
TRADE-MARKS AND TRADE-NAMES-UNFAIR COMPETITION IMITATION OF PIC
An artist has no such common-law right in pictures drawn by him and sold to another, who published and copyrighted the same, as to render it unfair competition in trade for the latter to afterward publish other pictures depicting different scenes merely because they contain characters in imitation of those in the earlier ones.
[Ed. Note.--Unfair competition, see notes to Scheuer v. Muller, 20 C. C. A. 165; Lare v. Harper & Bros., 30 C. C. A. 376.]
In Equity. On motion for preliminary injunction. Complainant seeks pendente lite to enjoin defendant from further manufacturing and selling comic sections of newspapers, containing pictures in imitation of those produced by complainant and employing in connection therewith a title (“Buster Brown") associated with said pictures.
Herbert Knight, for the motion.
LACOMBE, Circuit Judge. So far as the use of the title "Buster Brown” is concerned the controversy is disposed of by the opinion filed to-day in the countersuit of N. Y. Herald v. Star Company, 146 Fed. 204. The pictures which complainant for several years drew and sold to the Herald were by it colored, copyrighted and published. There is no contention that any subsequent picture is such an imitation of an earlier one as to constitute piracy; if it were the defendant in this suit as owner of the copyright would be the person entitled to complain. The contention of complainant is that it is unfair competition in trade for any one else to draw and offer for sale any other pictures in which, although the scenes and incidents are different, some of the characters are imitations of those which appeared in the earlier pictures which complainant sold to defendant. In other words that deponent, although he never copyrighted them and did not acquire any right to the title in connection with newspaper publication, has, nevertheless, some common-law title to individual figures therein displayed, which he can maintain to the exclusion of others, who depict them in other scenes and situations. It is sufficient to say that no authority is cited supporting this proposition, which seems entirely novel and does not commend itself as sound.
The motion is denied.
CANADIAN PAC. RY. CO. v. WENHAM.
(Circuit Court, S. D. New York. February 21, 1906.) COURTS-JURISDICTION OF FEDERAL COURT-MOTION TO QUASH SERVICE.
A motion to set aside the service in a federal court, on the ground that defendant is not an inhabitant of the district where the question of intention appears to be involved, will not be determined alone on the ex parte affidavit of defendant, nor will it be passed for determination of the question on plea or answer where defendant is under arrest; but the issue will be referred to a master, to take such testimony thereon as may be offered by either party, subject to the right of cross-examination. On Motion to Set Aside Service of Summons. See 146 Fed. 207. John J. Lordan, for the motion. Chas. A. Hess, opposed.
LACOMBE, Circuit Judge. The memoranda of authorities filed by both sides are not particularly helpful. The word used in the clause of the statute is not "domiciled,” nor "citizen," nor "resident,” but “inhabitant.” It would seem that the act of 1887 has been in force so long that there must be some decisions construing that word when applied to an individual not a corporation. If it be the equivalent of "domiciled,” the intent of the party is a highly important element. But it would be unfair to the complainant to accept as conclusive the sworn ex parte statement of defendant as to his intent, untested by the crossexamination to which he would be subjected if the question were being determined under a plea to the jurisdiction. This court has frequently, where proved facts seemed inconsistent with such a statement, declined
to determine the question on ex parte affidavits, leaving it to be decided under plea, or upon issue raised by the answer. Such a course in this case would be grossly unfair to defendant, who is held upon order of arrest under bail so high that it may be difficult for him to procure it. It is therefore referred to John A. Shields, one of the masters of this court, who is selected because his office is in the same building as that of the marshal, to take testimony and report the same to the court. The marshal may produce the defendant, if he desire to be examined on this question, and he may in that event, after making such statement as he may be advised, be cross-examined thereon. Of course the crossexamination must be directed solely to the facts bearing upon his alleged "inhabitancy” of this district. Either side may produce such other witnesses as counsel may choose, who will be examined and cross-examined. Either side may also file any additional affidavits, in case it may be found inconvenient to produce the witness, but in weighing such ex parte statements the court will give proper consideration to the circumstances that the affiants have not been tested by cross-examination. The taking of testimony must be expeditious, and when complete the court will then be sufficiently advised to make a decision, as it would were the questions presented on a plea. By that time counsel will no doubt be able to submit the cases bearing on the particular clause of the statute.
CANADIAN PAC. RY. CO. v. WENHAM.
(Circuit Court, S. D. New York. March 21, 1906.) 1. DOMICILE, CHANGE OF-INTENT.
Though the question whether a person, who has removed himself from one district to another, has thereby become an inhabitant or resident of the district where he is living and doing business when served with process is to be determined principally by his intent, his own declaration as to his intent, especially when made after he has become appreciative of the consequences of a change of domicile are not controlling
[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Domicile, $8
9-11, 15, 22.] 2. SAME.
When defendant left Chicago a suit against him was being tried, the result of which he must have understood would be adverse, and which was of such a character that execution under the judgment would run against his person and result in his imprisonment. He came to New York, entered into business, took a lease of an office for a year and a half, and of apartments for nine months. Though he left his wife and child in Chicago, he had for several years, whenever absent from Chicago, traveled with his mistress. Since the entry of the Illinois decree against him he had been in Chicago but a single day, a Sunday. Held, that defendant had become a resident of the New York district, and could be sued therein.
[Ed. Note.-For cases in point, see vol. 17, Cent. Dig. Domicile, $$ 9-11, 15, 22.]
Action upon a judgment in favor of plaintiff against defendant in United States Circuit Court, Northern District of Illinois, for moneys fraudulently converted. Motion to set aside service of the summons
and to dismiss this action, brought by an alien, on the ground that defendant is not an inhabitant of this district.
See 146 Fed. 206.
LACOMBE, Circuit Judge. Undoubtedly the question whether a person, who has removed himself from one district to another, has thereby become an inhabitant or resident of the district where he is living and doing business when served with process is to be determined principally by his intent. His own declaration as to his intent, however, especially when made after he has become appreciative of the consequences of a change of domicile, are not controlling. In the case at bar, in view of the defendant's admissions as to his past conduct, his declarations as to anything have little probative value. His intentions are to be deduced from his acts and from a consideration of the circumstances under which he acted.
When he left Chicago and came to New York a suit against him was being tried, the result of which he must have understood would be adverse, and which was of such a character that execution under the judgment would run against his person and result in his imprisonment. He came here, entered into business, took a lease of an office for a year and a half, and of apartments for nine months. He left his wife and child in Chicago, but that circumstance, usually important, is not especially persuasive because it appears that for several years, whenever absent from Chicago, he has traveled in this country and abroad with his mistress, introducing her as his wife, socially as well as to the hotels or tradespeople, from whom they have obtained lodging and food. No doubt, when he came he intended and hoped (and still does so) to return to Chicago. But as was said in Pacific Mutual Life Co. v. Tompkins, 101 Fed. 539, 41 C. C. A. 488, “the consummation of that hope and intent depended upon circumstances beyond his control; the happening of some fortunate event giving him opportunity to return.” He appreciates the situation. Since the entry of the Illinois decree against him in December last he has been in Chicago but a single day, January 7th, a Sunday, when he was immune from arrest under civil process.
Unless he may be fortunate enough to effect some compromise, he has no intention of residing in that city for many years to come, certainly not while he is liable to arrest in satisfaction of the judgment. His acts show that until that time comes, if it ever come, he has elected out of the territorial limits of the United States this particular district in which to live and conduct his business; and it would seem that within the meaning of the act of 1887 he has become an inhabitant of this district.
The motion is denied.