Admiral Corp. v. Penco, Inc. (106 F. Supp. 1015, 1952)

BURKE, District Judge.

This action is based upon alleged trademark infringement and unfair competition. Admiral Corporation owns and operates numerous fnanufacturing plants throughout the United States and maintains distributors throughout the United States and the world. At the present time it manufactures or distributes television sets, radios, radio-phonograph combinations, refrigerators, electric ranges and some miscellaneous appliances and parts. Penco has an office and store in Rochester, N. Y. and operates stores in Elmira, Binghamton, Syracuse and Buffalo. It manufactures none of the products it sells. It sells at retail electric vacuum ■ cleaners, electric sewing machines, electric floor polishers and parts for these appliances. Jurisdiction is invoked'by .reason of . the fact that Admiral charges Penco with infringement of its trademark Admiral which has been registered ,in the United States Patent Office. The registrations cover a variety of electrical appliances., It is further invoked on the- ground of diversity of citizenship involving a claim exceeding the jurisdictional amount for damages based on alleged unfair competition.

Admiral’s predecessor, Continental Radio and Television Corporation, acquired the trademark Admiral together with its good will by assignment from Columbia Radio Corporation in 1936. Admiral was first adopted by Columbia as its mark for radios in October, 1929. Continental was organized in 1934. Admiral has been used as its house mark since 1939. In 1943 it changed its name to Admiral Corporation. It.has continuously used the mark Admiral as the dominant trademark for all of its products. Current annual sales are in excess of $200,000,000. Since the adoption and use of the trademark Admiral it has sold in excess of $1,000,000,000 worth of its products valued at retail under the trademark. Admiral. For the same period' it spent approximately $47,000,000 in" advertising its goods under the trademark Admiral through direct advertising and distributor and dealer advertising. Its products are sold throughout the United States, Canada and Mexico and in every other continent in the world. Its trademark Admiral has been registered in the United States and thirty foreign countries. It is the world’s largest manufacturer of television sets. It maintains a large research staff and is constantly on watch for expansion of its line of products. It has a sales organization consisting of eighty-one distributors and over thirty-one thousand dealers. Its products have attained wide and general acceptance and a reputation for quality.

The defendant has challenged jurisdiction on both asserted grounds. Plaintiff’s extensive sales of electrical appliances bearing the mark Admiral covering the entire United States, Canada, Mexico and foreign countries, and' its large expenditures for advertising the mark in connection with its products, and public recognition of, the mark as denoting plaintiff’s electrical appliances are ample to establish the . statutory requirement of the amount in controversy to justify jurisdiction on the ground of diversity of citizenship. A showing anywhere in the record that the jurisdictional amount is involved will satisfy the statutory requirement. Harvey v. American Coal Co., 7 Cir., 50 F.2d, 832; Food Fair Stores v. Food Fair, 1 Cir., 177 F.2d 177. Defendant asserts that its activities are wholly intrastate and not subject to attack for infringement arising as a result of rights conferred on the plaintiff by its federal trademark registrations. Defendant buys its vacuum cleaners in 'Chicago. The cleaners are shipped from Chicago either to defendant’s headquarters in Philadelphia or direct to its stores in New York. Its sewing machines are imported from Japan, where the trademark Admiral is affixed. The sewing machines are delivered to. defendant’s headquarters in Philadelphia and shipped from there to its stores in New York. This is sufficient to establish that its activities are not wholly intrastate. Attempting to distinguish its activities from those under consideration in Pure Oil Co. v. Puritan Oil Co., 127 F.2d 6, it makes the novel argument that the shipments of vacuum cleaners and sewing machines bearing the mark Admiral, concededly interstate shipments, were shipments in cartons or crates which did not bear the trademark Admiral on the outside, and so did not involve the use of the mark in interstate shipments. This- argument appeals neither to reason