Rose Shoe Manufacturing Co. v. Rosenbush

Mr. Justice Robb

delivered the opinion of the Court:-

The sole issue is whether 'the adoption of this trademark by the appellant antedates its adoption by the appellee. Although Rosenbush, in his application, claimed 1891 as his date of adoption, the earliest date mentioned in his testimony is “the spring of 1895.” TIis former partner, Levie, as we have seen, finally fixes the date as “about a year or a year and. a half” after August 1, 1894, when the firm commenced business. From this testimony, and from this alone, we must find when appellee first used the word. Appellant, on the other hand, produced several credible witnesses who clearly traced the use of. the word by Siebert, Whitman, & Bartold in 1894, and by all their various successors down to and including the Rose Shoe Manufacturing Company. The testimony of Mr. Leckinger is susceptible of no other reasonable construction than that he had been purchasing shoes containing the trademark “Rose” from these various companies for about nineteen years. Mr. Leckinger is an entirely disinterested witness, and his testimony must be given the weight to which it is entitled. Mr. Bartold, to be sure, is employed by the appellant, but his testimony, being consistent and reasonable, is certainly entitled to as much weight as the testimony of one of the parties. His testimony is clear and convincing that the word “Rose” has been used by the various companies since 1894 at least. Having been connected with these firms, either as a partner or as an employee, Mr. Bartold is in a position to intelligently testify concerning the subject-matter of this controversy. Mr. Muckle, the president of the company, and presumably a man of intelligence and character, testified, in effect, that the word “Rose” has been used by bis company and its predecessors for about eighteen years. His testimony is entitled to as much weight as the testimony of the appellee. These various firms occupied the same factory, and each manufactured ladies’ shoes. It is reasonable to suppose that, once having adopted a trade name, they would continue its use notwithstanding a reorganization of the firm, and therefore the testimony of Mr. Bartold, that the name has been in continuous use since 1894, corroborated, as it is, by the testimony of the other witnesses, is not only reasonable, but, to our minds, conclusive as to when the mark was first adopted by appellant’s predecessors.

A careful analysis of the whole evidence, we think, irresistibly leads to the conclusion that appellant adopted this mark prior to the date of its adoption by appellee, even though we accept the uncorroborated statement of Mr. Rosenbush that his predecessor first used the mark “in the spring of 1895.”

It follows that the decision of the Commissioner must be reversed. The clerk of the court will certify this opinion, and the proceedings of this court in the premises, to the Commissioner of Patents, according to law. Reversed.