Esquire, Inc. v. Lewis

District Court, S.D. New York
Esquire, Inc. v. Lewis, 16 F.R.D. 246 (1954)
103 U.S.P.Q. (BNA) 363; 1954 U.S. Dist. LEXIS 4873

Esquire, Inc. v. Lewis

Opinion of the Court

DAWSON, District Judge.

This is a motion for an order requiring plaintiff (1) to serve an amended complaint which will separately state and number each claim for relief; and (2) requiring plaintiff to make its complaint more definite and certain.

The amended complaint alleges that it. is “a suit for unfair trading and for infringement of a trade-mark registered in the United States Patent Office”. It is not clear from the amended complaint, which of the allegations relate to the charge of trade-mark infringement and which relate to the charge of unfair competition. The trade-mark is not described, nor is its registration number given.

The issues with reference to infringement of a registered trade-mark may well be quite different from those relating to charges of unfair competition or the unfair use of • an unregistered trade-name. A clear presentation of the issues would seem to indicate that the claims for infringement of the registered trade-mark and the claims for unfair competition should be separately stated. Rule 10(b), Federal Rules of Civil Procedure, 28 U.S.C.A. See Italian Swiss Colony v. Ambrose & Co., Limited, D.C.Colo.1951, 94 F.Supp. 896; Brooks Bros. v. Brooks Clothing of California, D.C.Calif.1954, 60 F.Supp. 442, affirmed 9 Cir., 158 F.2d 798, certiorari denied 331 U.S. 824, 67 S.Ct. 1315, 91 L.Ed. 1840.

It is, therefore, ordered that the-plaintiff amend its complaint separately to state the causes of action for infringement of a registered trade-mark and for unfair competition. The cause of action for infringement of a registered trademark shall identify the trade-mark and its registration.

The balance of the motion which seeks to make the complaint more definite and certain is denied.

Reference

Full Case Name
ESQUIRE, Inc. v. David LEWIS, Mac Lewis and Arthur Lindsay, doing business under the name Esquire Sportswear Co.
Cited By
1 case
Status
Published