Summary
granting motion for more definitive statement as "[t]he cause of action for infringement of a registered trade-mark shall identify the trade-mark and its registration"
Summary of this case from Valoro, LLC v. Valero Energy Corp.Opinion
Suit for unfair competition and trade-mark infringement. On defendant's motion for order requiring plaintiff to serve amended complaint separately stating and numbering each claim for relief and making complaint more definite and certain, the District Court, Dawson, J., held that where complaint did not show which of allegations related to charge of trade-mark infringement and which related to charge of unfair competition, plaintiff by amended complaint should state separately claim for infringement of registered trade-mark and claim for unfair competition.
Motion to state causes of action separately granted and balance of motion to make complaint more definite and certain denied.
Cravath, Swaine & Moore, New York City, for plaintiff.
Henry L. Burkitt, New York City, for defendants.
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 trade-mark 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.