Summary
noting the elimination of the "Bill of Particulars" in favor of interrogatories in 1948
Summary of this case from Sempier v. Johnson HigginsOpinion
Trade-mark infringement and unfair competition action. Defendants' demand for bill of particulars was treated as request for interrogatories. The District Court, Dawson, J., held that plaintiffs would not be required to answer interrogatories seeking information as to plaintiffs' trade-marks and names other than the ones mentioned in complaint, and would not be required to answer interrogatories as to damages in view of demand for accounting.
Order in accordance.
Winthrop, Stimson, Putnam & Roberts, New York City, for plaintiffs.
Nathan Stern, Brooklyn, N.Y., for defendants.
DAWSON, District Judge.
Plaintiffs commenced an action for trademark infringement and unfair competition, charging that defendants have infringed upon plaintiffs' trademarks and names ‘ Singer’, ‘ The Singer Manufacturing Company’, and ‘ Singer Manufacturing Co.’
Defendants have made a demand for a ‘ Bill of Particulars' with respect to some seven items. This procedural relic no longer exists under the Federal Rules of Civil Procedure, 28 U.S.C.A., and I will treat it as a request for written interrogatories under Rule 33. Plaintiffs object to interrogatories III and IV, and VI and VII. The interrogatories objected to may be delineated as those referring to other trademarks of the plaintiffs than the ones mentioned in the complaint, and those referring to damages.
Other Trademarks
In interrogatories III and IV, defendants seek information as to all marks or names used by the plaintiffs or their predecessors other than ‘ The Singer Manufacturing Company’, and as to what business is transacted under each of these marks, including ‘ The Singer Manufacturing Company’ .
All marks or names other than ‘ Singer’, ‘ The Singer Manufacturing Company’, and ‘ Singer Manufacturing Co.’ are not relevent to this proceeding. See Stanley Works v. C. S. Mersick & Co., D.C.Conn.1939, 1 F.R.D. 43; 4 Moore's Fed.Prac., 2d Ed., 2300, 2301. However, plaintiffs shall answer so much of the interrogatory as asks what business was transacted by the plaintiffs under the marks or names ‘ Singer’, ‘ The Singer Manufacturing Company’, and ‘ Singer Manufacturing Co.’ Other than as so limited, plaintiffs need not answer interrogatories III and IV.
Damages
Interrogatories VI and VII concern themselves exclusively with damages. Where, as here, an accounting is demanded, questions relating to damages should await a determination of infringement and a right to an accounting. Gagen v. Northam Warren Corp., D.C.S.D.N.Y.1953, 15 F.R.D. 44; Zenith Radio Corp. v. Dictograph Products Co., Inc., D.C.Del.1947, 6 F.R.D. 597; Anheuser-Busch, Inc. v. Dubois Brewing Co., D.C.W.D.Pa.1943, 3 F.R.D. 336; 4 Moore's Fed.Prac., 2d Ed., 1072. Interrogatories VI and VII need not be answered at this time.
So ordered.