Mr. Archibald Cox for appellant.
[217 U.S. 457, 459] Messrs. L. L. Morrill and E. T. Fenwick for appellee.
Mr. Chief Justice Fuller delivered the opinion of the court:
This was a bill in equity for an injunction and accounting, the complainant alleging the defendant had infringed its technical trademark applied to shirts, and also was guilty of unfair competition. As complainant is a corporation of the state of New York and defendant is a citizen of the same state, the court's jurisdiction extends only to the use of the registered trademark in commerce between the states, with foreign nations, and the Indian tribes.
There was no attempt to prove that defendant had passed off, or intended to pass off, his goods for complainant's, or had made profits, or that complainant had sustained damage. The cause proceeded solely on complainant's ownership of its technical trademark.
The circuit court held that defendant's trademark or brand was clearly distinguishable from that of complainant, and said:
The bill was thereupon dismissed, and having been taken by appeal to the United States circuit court of appeals for the second circuit, the decree below was affirmed. 90 C. C. A. 1, 163 Fed. 42.
Appellants thereupon petitioned for an appeal to this court, which was allowed.
Sections 17 and 18 of the act of Congress approved February 20, 1905, in respect to trademarks, reads as follows:
We are of opinion that this appeal will not lie, and that the remedy by certiorari is exclusive. By the 6th section of the judiciary act of March 3, 1891, the final decisions of the circuit courts of appeal are made final 'in all cases arising under the patent laws, under the revenue laws, and under the criminal laws and in admiralty cases,' with power in this court to require any such cases to be certified thereto for its review and determination, 'with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.' [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, p. 549.]
We think that the language of 18 places suits brought under the trademark act plainly within the scope of the act [217 U.S. 457, 461] establishing the court of appeals, and that a final decision of that court can be reviewed in this court only upon certiorari, and that therefore the pending appeal must be dismissed. And this conclusion is sustained by Atkins v. Moore, 212 U.S. 285, 291 , 53 S. L. ed. 515, 517 29 Sup. Ct. Rep. 390.