Diamond Match Co. v. Safe Harbor Match Co.

DALLAS, Circuit Judge.

Whatever result may be reached upon the final hearing of this case, I am unable to find upon the proofs as now presented, that the complainant’s asserted title to the exclusive use of the word “Crescent” as a trade-mark for matches has been clearly established. The affidavits submitted by the defendants have created in my mind a serious' doubt as to whether the plaintiff’s usage of that word has been so general, continuous, and exclusive as to entitle it to have all other dealers enjoined from using it. Actiengesellschaft v. Amberg (C. C. A., 3d Circuit, May 7, 1901) 109 Fed. 151. The controversy, therefore, is one which cannot safely be decided except upon evidence regularly taken, with opportunity to each side to cross-examine the witnesses upon the other. It appears, by complainant’s showing, that there are numerous persons and corporations who are using this mark, and this is urged as a reason for the immediate award of an injunction; but, in my opinion, such general, use (though alleged to be wrongful) makes it all the more desirable that the adequacy of the plaintiff’s title should not be adjudged upon ex parte affidavits. The motion for preliminary injunction is denied.