Opinion
No. 76.
August 11, 1939.
Hulbert, Helsell Bettens, of Seattle, Wash., for plaintiff.
Kahin, Carmody Schramm, of Seattle, Wash., for defendant.
Suit by the Ford Motor Company against Walter R. McFarland, doing business as McFarland Motors, wherein plaintiff sought exclusive right to the words "Ford Service." On motion to dismiss the complaint.
Motion granted with leave to amend.
The Court is satisfied that the complaint states sufficiently a controversy in the jurisdictional amount between citizens of different states. However, the Court is of the view that the complaint does not state a claim upon which relief can be granted. Rules of Civil Procedure, rule 12(b), use of the 28 U.S.C.A. following section 723c.
A study of the complaint leads to the conclusion that, despite the disclaimer at the hearing, it seeks exclusive right to the words "Ford Service". See Pars. II, IV and Prayer of Complaint. The defendant's conceded right to use Ford parts gives him the right to service Ford automobiles with them, and to inform the public that he does so.
The plaintiff is not selling "service". It is selling automobiles and parts.
Assuming that it is injured when one who is not "an authorized" dealer or service man holds himself out as such, either by imitation of symbols, overemphasis of the Ford name, or other unfair or deceptive methods, the complaint does not charge any of these practices. Rather, would it prohibit the use of the word "Ford" in any combination with others, especially with "service".
And, while the complaint alleges the registration of the mark in fanciful script, and its infringement, jurisdiction is not sought under the trade mark law, but is grounded on diversity of citizenship.
Assuming that Exhibit "F" shows infringement of the fanciful script, a claim based on it for trade mark infringement should be stated separately from a claim of unfair competition. Rules of Civil Procedure, Rule 10(b). Although failure to state claims separately is not made a ground for dismissal, the fact should be considered by counsel in drafting an amended complaint.
The motion to dismiss will be granted with leave of plaintiff to amend within twenty days.