Page 473.

ness and disposition to save the time of the court which
counsel would be expected to show at the trial is not out
of place in answers to interrogatories. The object which
rule 58 has in view is to bring down every case to its con-
troverted points. If the fact of the publication and to
whom it referred would not be denied after the plaintiff
had offered evidence on the subject, the court should
be relieved now of the necessity of going into the evi-
dence. The defendant can protect itself in all its rights
by limiting its answers so that they may be used only
for the purposes of this case.

The disposition now made of the case is that, unless
the defendant withdraws its objections to all the inter-
rogatories by answering to such as it is herein indicated
it is proper for it to make answer, plaintiff is granted
leave to amend the interrogatories filed by reframing
them in accordance herewith.

[3] This brings us to the answers to interrogatories 1 to 12. The criticism directed to the answers to 1 and 2 is well founded; as to 4, 6, and 12 we do not feel any call upon us at this time to express an opinion upon a question as to which two well-qualified experts differ. The quoted phrase does, however, express a meaning. It may be that it does not express the same meaning to the expert as to the common mind and, possibly, to the expert mind may not express its meaning accurately and clearly and in that sense may be said to be meaningless. The question may, however, be answered. If the defendant is in doubt as to the meaning intended to be conveyed, or if the meaning does not certainly appear from the question itself, all needed protection in the answer can be provided by a restatement of the question so as to bring out clearly the meaning defendant understands the question to have. The answer following 7 is also open to the criticism directed against it, as also are answers 9 and 10.

[4] Defendant is right in its contention that it can not be required through the guise of interrogatories to construe a patent claim or to admit or deny infringement as a legal conclusion. Aside from either of these things, however, there are facts upon which this legal conclusion is based. Wise tactics in the trial of a case impels the admission of facts not in controversy. Sometimes the admission is deferred until after the opposing side has made proof of them. We observe again that rule 58 was

framed to afford an opportunity to obtain this admission in advance of trial and save the necessity of proving that which is only formally and not really in controversy. The defendant is required to answer over to the interrogatories indicated.

[233 Federal Reporter, pp. 470–473.]

STAR CO. v. WHEELER SYNDICATE, INC.

(Supreme Court, Special Term, New York County. Sep

tember, 1915.)

1. WORDS AND PHRASES-" SYNDICATING."

v.

Star Co. Wheeler Syndi

September,

"Syndicating consists in gathering materials suitable cate, Inc.. for newspaper publication from writers and artists and dis- 1915. tributing the same at regular intervals, in the form of matrices, to newspapers throughout the country for publication on the same day.

2. TRADE-MARKS AND TRADE NAMES-DESIGNATION OF CARTOONSPRELIMINARY INJUNCTION.

Where, in a suit to enjoin the use of the words "Mutt and Jeff" in connection with cartoons constituting comic sections of newspapers, it appears that the name of the artist rather than plaintiff's newspaper is inseparably associated in the public mind with the words quoted and that his name is part of the registered trade-mark, and plaintiff's right to a trade-mark in such words as applied to a comic section is doubtful, a preliminary injunction restraining defendant from using such words to designate cartoons made by the same artist after termination of his contract with plaintiff will be denied.

3. TRADE-MARKS AND TRADE NAMES-"TRADE-MARK."

A "trade-mark has been defined to be one's commercial signature; a word, symbol, or device by which the wares of the owner are known in trade.

Injunction by the Star Company against the Wheeler Syndicate, Incorporated. Temporary injunction vacated. John T. Sturdevant, of New York City (Bainbridge Page 783. Colby, of New York City, of counsel), for plaintiff.

Kelley & Becker, of New York City (Charles E. Kelley, of New York City, of counsel), for defendant.

WEEKS, J. The plaintiff seeks an injunction restraining the defendant from using the words "Mutt and Jeff " in connection with cartoons, designated as "comic strips," which are claimed to constitute comic sections of news

papers. It is asserted that such words, used as a title, constitute a trade-mark or trade name, ownership of which is claimed by the Star Company and also by the artist, Harry C. Fisher, under license from whom the Wheeler Syndicate, Incorporated, claims the exclusive right to use the same. The Star Company also asserts the right to prevent any person, without its consent, from depicting the figures of either "Mutt" or "Jeff " in comic strips, or making any sketches or representations of said characters, or using said names as designations of the comic characters or figures of "Mutt" or "Jeff.”

The grotesque figure of "Mutt" first appeared in a cartoon drawn by Fisher which appeared in the San Francisco Chronicle on November 15, 1907, and the figure continued to appear in his cartoons in that newspaper until December 10, 1907, on which day the cartoon was copyrighted by Fisher. On the following day a similar cartoon, also containing the figure of "Mutt" and drawn by Fisher, appeared in the San Francisco Examiner, and such cartoon was also copyrighted by Fisher. On May 5, 1908, another grotesque figure, called "Jeff," was introduced by Fisher in the cartoon appearing on that day in the Examiner. Until May, 1909, Fisher continued to draw cartoons of "Mutt" and "Jeff,” containing one or both figures, and the Examiner printed them with the name of the artist following the title or caption of the picture. In this month (May, 1909) Fisher's cartoons of "Mutt" and "Jeff" first appeared in the New York American, published by this plaintiff.

On August 8, 1910, Fisher entered into an agreement with the plaintiff for a period of five years "to devote his entire time, attention, and energy to the Star Company and the publications and newspaper enterprises in which Mr. William R. Hearst is or may be interested, and to work exclusively for the Star Company and such publications and newspaper enterprises." The Star Company, in addition to allowing Fisher to appear in vaudeville, agreed that during the life of the agreement "no one, with its consent, shall produce 'Mutt' or 'Jeff', or any other series originated by Mr. Fisher, in any publication controlled by the Star Company or Mr. Hearst, and that it will prohibit any such publication on due notification from Mr. Fisher."

On September 22, 1910, Fisher copyrighted in book form some of the cartoons which had been theretofore published in various newspapers, together with some new ones, under the title "The Mutt and Jeff Cartoons, by Bud Fisher." A second book, under the same name and designated "Book 2," was copyrighted by Fisher on November 1, 1911. On November 14, 1914, Fisher applied for registration of the title "Mutt and Jeff" as a Page 784. trade-mark for a series of cartoons, and registration was granted March 9, 1915. Prior to December 11, 1914, the cartoons had invariably been published under the descriptive captions or titles as furnished by the artist with his drawings and with the words "By Bud Fisher" added to such titles. Up to that time the words "Mutt and Jeff" had never been used in the newspapers as a title.

The plaintiff, having learned that its contract with Fisher would not be renewed, prefixed to the descriptive title of the cartoon as published in the New York American on December 11, 1914, the words "Mutt and Jeff," but did not prefix those words to the title of the cartoon as published under its syndicated service in the newspapers outside of New York City. After that date the words "Mutt and Jeff" were not again used as a title until January 19, 1915, when the cartoon was published under the title "Mutt and Jeff. By Bud Fisher," and this style of publication continued until January 29, 1915.

[1] The cartoons in question, which are called "comic strips," may be described from the exhibits as a series of five or six pictures arranged in a strip so as to cover the width of a newspaper page, and depicting the progressive development of a situation in which the oversized "Mutt" and the undersized "Jeff" are usually the only participants, and in which the latter is usually the subject of maltreatment by the former. "Syndicating," referred to in the papers upon this motion as a business in which both the Star Company and the Wheeler Syndicate, Incorporated, are engaged, consists in gathering materials suitable for newspaper publication from writers and artists and distributing the same at regular intervals, in the form of matrices, to newspapers throughout the country for publication on the same day.

Page 785.

The plaintiff rests its claim upon the authority of New York Herald Co. v. Star Co., C. C. (146 Fed. 204), which sustained the Herald's right to a trade-mark in the words "Buster Brown" as a title or heading for a comic section of a newspaper. It was stated in that case that a comic section might consist of several pages or of a single page, or that it might be a subsection of a larger section, also comic, and that the artist who originated or drew the first figure of "Buster Brown," or any other person, was entirely free to design, draw, color, and publish comic pictures of the same kind as those to which the title had been prefixed by the owner of the trade-mark, provided the cartoons did not so closely imitate pictures already published as to amount to an infringement thereof. The opinion points out that the "Buster Brown" case concerned only an alleged infringement of a trade-mark, and presented no question as to copyright or as to unfair competition. In these last two respects, as well as in its facts, the case is wholly dissimilar to the case at bar.

In the "Buster Brown" case the comic figure had never been used for a newspaper cartoon or comic section prior to its use in the comic section or supplement of the Herald; neither the name nor the figure had been used by the artist theretofore, except for an advertising poster; the cartoon which was drawn in black and white by the artist Outcault had been colored by the art department of the Herald for such publication; the application of the title to the page or section was originally made by the Herald, and was continuously used as a heading for such section for more than three years, and such title had become widely known as a distinguishing mark of the comic section issued by the Herald Company, and had been syndicated by it under that name as a comic section, and such title had been registered by the Herald Company as a trade-mark.

In the present case there has been no such original application by the Star Company of the title "Mutt and Jeff" to the pictures described as "comic strips," and no such continued and exclusive appropriation of the title to such purpose is shown. It does not appear that the cartoons have been published as a section or part of a comic supplement, or that the title has become known as a distinguishing mark of any such supplement. Both characters were created by the artist, and the names were used by him and by other newspapers in connection with