Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CHASE, and MACK, Circuit Judges.
We adopt in substance statement of facts made by the learned District Judge as follows:
"Plaintiff, a Dutch corporation, brought this suit against defendants, who are selling agents in this country of another Dutch concern which manufactures in Holland a confection known as 'Frank Rademaker's Hopjes,' in competition with a similar product made by plaintiff under the name of 'Rademaker's Hopjes.'
"The complaint sets up two causes of action; one, based upon an alleged infringement of a trade-mark registration of 'Rademaker's Hopjes' with specified markings, and the other upon the ground of unfair competition. * * *
"On the fourteenth day of November, 1782, the city of Brussels was occupied by French troops, and Hendrik Baron Hop, the Dutch Ambassador, was ordered to the Hague, where he took quarters in the home of a confectioner and pastry baker by the name of Theodorus Van Haaren. According to tradition, the latter, in an effort to please his distinguished guest, manufactured a hard candy, cut into squares or cubes, made from coffee, sugar and fresh cream. The confection so met the fancy of the Ambassador that he purchased it in considerable quantities for distribution among his friends. So generously and generally did he perform that considerate function that the confection was associated with the name of the Ambassador, and came to be known as 'Hopjes' which signified 'little Hops.'
"Van Haaren had a daughter who, in 1802, married Pieter Nieuwerkerk, and when the originator of the confection was gathered unto his fathers, the business he had established was continued by his son-in-law. In the century and more that has passed, the Nieuwerkerk family has carried on the manufacture of hopjes, and its product is now on sale in this city (New York).Meanwhile, other manufacturers, attracted by the business, engaged in making hopjes and sold the candy over the counters of their shops.
"As the years went on, a Hollander named Johannes Petrus Rademaker took up the business of a confectioner. His elder son, Franciscus Joseph Maria Rademaker (herein known as Frank Rademaker), became a manager for his father at Scheveningen, Holland. A few years later, a younger son, William Joseph Rademaker, who is now the managing director of the plaintiff, became associated in the business and over the period from 1894 to 1899 he acted as superintendent of his father's factory at Cologne, Germany. Notwithstanding, this portion of the father's business was never transferred to the plaintiff, but remained the property of the founder of the house.
"In 1896, or thereabouts, the Rademaker concern began to make hopjes on a small scale, and in increasing measure have continued to do so. Three years later the business of Johannes Petrus Rademaker, at Scheveningen, was transferred to the plaintiff, and the two sons, Frank and William, became its co-managers. Shortly thereafter, Frank went to England, where he formed and afterwards liquidated a chocolate business. When he had done so, probably about 1904, he failed to reassociate himself with his brother, but established and conducted his own business at Rotterdam, in which he made and sold hopjes. * * *
"On January 8, 1910, plaintiff filed applications for and was granted registration of certain trademarks under 'the ten year clause' of the registration statute. The marks are described as follows:
"No. 82,808 'Rademaker's Hopjes'
"No. 89,860, the display of 'S. Rademaker Hopjes' in light letters (either yellow or white) against a comparatively dark (either black or gold) disk on the labels with which each piece of plaintiff's products is wrapped.
"No. 85,756, the registration of a label reading 'Haagsche Hopjes' on which the mark described in No. ...