A famous French Grayling specialist. This rod was first produced in and production ceased in Satin cloth bag and anodised tube, which still has the canvass covering and makers label. The rod number is printed on the butt.

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United States District Court S. New York. Jesse K. Overocker, William F. Dudine, Jr. Jurisdiction is based on diversity of citizenship, 28 U. Pezon et Michel Pezon is a French corporation doing business in France which sells fishing tackle and equipment throughout the world. Defendant Ernest R. Hewin Associates, Inc. Hewin is a New York corporation doing business in this district which imports and distributes fishing tackle and equipment.

Since about Pezon has exported to the United States various sizes and types of spinning reels under the trademark LuXor. These reels were mechanically designed, allegedly at the instance of Pezon, by Paul Mauborgne, a well known French industrial designer now deceased, whose interests are presently represented by P.

The reels so manufactured, exported to the United States by Pezon and sold by its distributors here, had cast in raised letters on the housing the word "LuXor", the name "Pezon et Michel" and the legends "Licence P. The present controversy between the parties stems from a dispute in France between P. After the death of Paul Mauborgne in the relations between Pezon and P. On September 19, Mauborgne and Lemaignen entered into an agreement with Hewin for the exclusive distributorship of Mauborgne reels in the United States under Mauborgne trademark CrAck.

Hewin has been selling these reels in the United States for some months under the CrAck trademark pursuant to this agreement. The parties concede that the CrAck reels are identical in all respects with the reels sold by Pezon under the LuXor trademark except that the trademark "CrAck" and the legends "Licence P.

Mauborgne and Pezon have brought suit against each other in the French courts to determine their rights with respect to the manufacture and sale of the reels involved in this action and to the tools and dies used in their manufacture. The French litigation is pending and undetermined though it appears that an application by Pezon for preliminary relief was denied on April 8, Hewin is not a party to the French litigation.

The issues in the case at bar are much narrower than those in France. For purposes of this action Pezon concedes that Hewin has the right to sell the reels designed by Mauborgne under the mark CrAck which are identical with the reels Pezon sells under the tradename LuXor.

Pezon contends that by his methods of sale, advertising and promotion, Hewin is attempting to palm off the CrAck reel as the LuXor reel; is creating confusion in the minds of the purchasing public as to source; is falsely creating the impression that the LuXor reel is no longer imported or available; and is trading on and appropriating the goodwill of Pezon and the LuXor trademark.

Pezon claims that as a result of such conduct its United States distributor has stopped handling LuXor reels and that its American market is being destroyed. Hewin, on the other hand, insists that everything which it has done in the sale and promotion of its CrAck reels is lawful, legitimate and entirely proper in the light of the termination of the prior arrangements between Mauborgne and Pezon and its distributorship agreement with Mauborgne and Lemaignen.

Nevertheless, Hewin by letter to the court dated April 14, , has represented that it "agrees not to use the mark LUXOR on its reels, reel parts or packaging. Pezon claims no monopoly in the sale of these reels by way of patent protection or otherwise. From the standpoint of Pezon these reels, for purposes of this motion at least, must be considered to be in the public domain and a free competitive market in them is to be encouraged in the public interest. As Pezon recognizes, manufacture and sale of an exact copy of an unpatented design by a new entrant into the market does not in itself constitute unfair competition.

Solo Prods. Haendler, F. Nor does plaintiff claim here that the LuXor mark has acquired a secondary meaning as to the mechanism or its source. Rohrlich, F. Flexitized, Inc. National Flexitized Corp. United Plastics Co. Sterling Drug, Inc. Palming off is an attempt to make the purchaser believe that the product of the subsequent entrant is that of his better known competitor.

See Enders Razor Co. Christy Co. The line between palming off and creating confusion as to source is indistinct; in effect, palming off is simply a direct and more flagrant means of misleading purchasers as to the source of the product.

Both palming off and creating confusion as to source can easily lap over into misappropriation of the property or goodwill of a competitor. A product in the public domain may be manufactured and sold by anyone. But one who seeks to market a product similar to that marketed by another, is required to merchandise his product in such a way as to differentiate it in the mind of the average purchaser from the product of his competitor. Feathercombs, Inc. Protective Closures Co.

Ritchie, Inc. Chesebrough-Ponds, Inc. While the promotion of competition in products in the public domain is favored, the competitive advantages obtained by the earlier entrant into the field in terms of the goodwill associated with his name and reputation are entitled to protection. For though the goodwill of an unpatented product or device is in the public domain, Kellogg Co.

National Biscuit Co. Salzman, Inc. See, e. The facts in each case must be carefully examined to determine whether they come within these well settled principles. Before discussing the contentions of the parties in the light of the applicable law some preliminary observations are in order. It is impossible from the papers before me to determine the terms of the arrangements between Pezon and Mauborgne prior to cancellation on August 16, There was apparently no written contract between the parties and such understanding as there was was largely oral.

Pezon and Mauborgne each claims, in essence, that the other was its distributor and licensee. Each claims the right to manufacture and sell the Mauborgne reels to the exclusion of the other. Pezon claims the tools and dies now held by Mauborgne and Lemaignen and the latter claim they are the sole owners of them.

Pezon apparently does not question the Mauborgne patents, in this action at least, but seems to claim rights by way of license which Mauborgne strenuously denies. All of these issues appear to be the subject of and dependent on the litigation in the French courts which will not be speedily resolved.

Hewin is not a party to that litigation and Mauborgne and Lemaignen are not parties to this. Thus, the respective rights to the identical reels sold by Pezon under the trademark LuXor and by Hewin under the trademark CrAck cannot be determined at the present stage of this action and in all probability must await resolution by the French courts.

It is all very well for Pezon to say, as it does here, that this case involves only the LuXor trademark and that everything else is irrelevant and immaterial. Plainly, however, the claims of trademark infringement and unfair competition cannot be determined in a vacuum. The facts, circumstances and background in which the conduct complained of occurred bear directly on the question of whether there was essential unfairness.

Here the background facts and circumstances are in sharp dispute and, indeed, are the subject of pending litigation in another country. Thus, the manner in which these identical reels can be marketed in this country under the competing trademarks depends to a major degree on the questions now being litigated in France and, indeed, the effect of the unexpired Mauborgne patents which are not here challenged.

They may be grouped generally into three categories: a Alleged similarity of the CrAck mark to the LuXor mark and placing of the legend "Licence P. Plaintiff does not claim here that Hewin has attempted to sell any reels with the LuXor mark on them. As Hewin points out, it is not at all unusual to capitalize the middle letter of a trademark and I fail to see any possibility of confusion which could arise from doing so here.

Nor is there merit in the contention that the placing of the legend "Licence P. Mauborgne" on the CrAck reels is confusing and improper. If Hewin has the right to distribute these reels, it and Mauborgne are plainly entitled to take advantage of whatever meaning the name Mauborgne has to purchasers. Amiesite Asphalt Co. Interstate Amiesite Co. The Hewin brochure is quite different in cover design, color, size, shape and layout from the Pezon brochure.

It makes no mention whatsoever of the name LuXor. While the reel shown is identical to the LuXor reel of the same model, the picture used is different and the reel depicted has the CrAck mark on it.

It is true that the diagram of the reel as disassembled is somewhat similar to the comparable diagram in the Pezon brochure though it is differently laid out and uses a different system for numbering the parts and sub-assemblies.

But it is difficult to see how similarities can be avoided when dealing with an identical mechanism. See Feathercombs, Inc. The technical instructions, however, though differently laid out, are identical to those in the Pezon brochure. But this material makes no reference to the LuXor reel.

Unless a word by word comparison of one brochure with the other is made, no impression is given that this material would apply to any other reel but the CrAck. Finally, the packaging of the CrAck reel is entirely different from that of the LuXor reel and one could not possibly be confused for the other.

I do not find that the Hewin brochure is false or misleading or creates any confusion as to source. See Swanson Mfg. Feinberg-Henry Mfg. Hewin claims that the other terms are registered to Mauborgne in France and that Mauborgne has the right to use them all.

Pezon disputes this and claims a right to the terms by prior use. It is impossible to determine on the papers before me who has the right to use these model designations and it may well be that such questions must await the determination of the French litigation between Mauborgne and Pezon. In any event, Pezon has failed to establish here that the use by Hewin of these model designations is improper. Hewin concedes that at the outset of its sales activities here it used a retouched picture of a LuXor reel, which had appeared in a Pezon catalogue, in a pamphlet describing the CrAck reel.

Hewin points out, however, that the LuXor mark was completely excised from the reel in the picture and the CrAck mark placed in its stead. Hewin has discontinued the use of this photograph and now uses exclusively a photograph of the CrAck reel. Maxwell Bentley Mfg.


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