AARON BLUTHENTHAL AND MONROE L. BICKART, PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF BLUTHENTHAL AND BICKART, APPELLANTS,
v.
THEODORE MOHLMANN, APPELLEE
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This case concerns a trademark dispute where the court found that the plaintiff's allegations of unfair competition and trademark infringement were sufficient to withstand a demurrer. The court reversed the dismissal of the bill but affirmed the denial of a temporary injunction.
The court held that the allegations in the bill, admitted by the demurrer, were sufficient to establish a claim for unfair competition and trademark infringement, and therefore the demurrer should not have been sustained. However, the court affirmed the denial of the temporary injunction due to conflicting evidence.
“We are of opinion that the allegations of the bill show that the appellants have rights in the exclusive use of the trade mark of their brand of whiskey cálled “Old Joe,” described in the bill, and we are unable to say,' in the face of the admission by the demurrer of those allegations, that a bare inspection of the exhibits affords sufficient proof to do away with the effect of those admitted allegations.”
Establishes the court's finding that the plaintiff's allegations were sufficient to show trademark rights and overcome the demurrer.
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Join FLexlaw to unlock all legal intelligenceThe appellants, partners doing business as Bluthenthal and Bickart, alleged that the appellee, Theodore Mohlmann, was using a brand of whiskey called …
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Hooker, J.
(After starting the facts.)
We are of opinion that the allegations of the bill show that the appellants have rights in the exclusive use of the trade mark of their brand of whiskey cálled “Old Joe,” described in the bill, and we are unable to say,' in the face of the admission by the demurrer of those allegations, that a bare inspection of the exhibits affords sufficient proof to do away with the effect of those admitted allegations. The bill, among other things, alleges that complainants had established a right to use the devices upon the bottles containing the “Old Joe” whiskey as a trade mark, that the brand of the defendant resembled that of complainants in size of package, shape, color and appearance; and that the defendant is actually selling his brand of “Old Geo. Whiskey” as and for the whiskey of complainants, and that these acts of defendant constitute an unfair and fraudulent competition in business. These allegations are admitted by the demurrer. If it be true, as thus admitted, that there is such a resemblance as to enable the defendant to actually spll his brand of whiskey for that of complainants, we do not think it can be said the .bill is without equity. El Modello Cigar Man. Co. v. Gato, 25 Fla. 886, 7 South. Rep. 23; 28 Am. & Eng. Ency. Law (2nd ed.) 416; Leidersdorf v. Flint, 50 Wis. 400, 7 N.
W. Rep. 252; American Trademark Cases (Price & Steuart) 176, 431. We think the court erred in sustaining the demurrer and dismissing the bill. In regard to the order refusing a temporary injunction we can not say that the chancellor erred. There, was a great conflict in the affidavits of the respective parties, and it does not clearly appear that the chancellor’s ruling refusing a temporary injunction was against the weight of the evidence. Baya v. Town of Lake City, 44 Fla. 491, 33 South. Rep.
400. The order sustaining the demurrer and the decree dismissing the bill are reversed, and the cause remanded for further proceedings.
Taylor and Cockrell, JJ., concur. Whitfield, C. J., and Carter and Shackleford, JJ., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Godwin v. Phifer, 51 Fla. 441 (Fla. 1906)…te, 39 Fla. 745, 23 South. Rep. 555; Baya v. Town of Lake City, 44 Fla. 491, 33 South. Rep. 400; Richardson v. Kittlewell, 45 Fla. 551, 33 South. Rep. 984; Baird v. Ellsworth Trust Co., 45 Fla. 187, 34 South. Rep. [*459] 565; Bluthenthal v. Mohlman, 49 Fla. 275, 38 South. Rep. 709; Suwannee & S. P. R. Co. v. West Coast Ry. Co., 50 Fla. 609, 39 South. Rep. 538. While this is true, if it is plainly apparent that the bill is without equity, an injunction should not be granted in the first instance but if gra…
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Gillis v. State Live Stock Sanitary Bd., 94 Fla. 890 (Fla. 1927)…Holt v. Hillman-Sutherland, 56 Fla. 801, 47 So. 934. When it does not clearly appear that a chancellor’s ruling refusing a temporary injunction was against the weight of evidence, such ruling cannot be held to be erroneous. Blumenthal v. Mohlmann, 49 Fla. 275, 38 So. 709. It appears to us that the chancellor has determined this cause upon the evidence and one cannot say that it clearly appears that his decree was against the weight of evidence or an abuse of judicial discretion. The decree of the chanc…
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Simms v. Patterson, 53 Fla. 984 (Fla. 1907)…ourt will not interfere with the exercise of this judicial discretion, unless an abuse thereof is clearly made to appear. See Godwin v. Phifer, 51 Fla. 441, text 458, 41 South Rep. 597, text 602, and authorities there cited. Bluthenthal v. Mohlmann, 49 Fla. 275, 38 South. Rep. 709, and McKinne v. Dickenson, 24 Fla. 366, 5 South. Rep. 34, will prove especially instruc [*987] five. No abuse of judicial discretion has been made to appear to us, therefore the interlocutory order appealed from must be and the s…
Authorities Cited
- El Modello Cigar Mfg. Co. v. Gato, 25 Fla. 886 (Fla. 1889)
- Baya v. The Town of Lake City, 44 Fla. 491 (Fla. 1902)