Stauffer

This action was brought for the recovery of damages arising out of alleged acts of unfair competition and for the issuance of an injunction against the commission of future similar acts. A separate trial was had on the issue of jurisdiction, following which the trial court made findings of fact and conclusions of law and dismissed the complaint for lack of jurisdiction. The trial court found that appellant, Stauffer System, Inc., is a corporation of California and that both individual appellant and appellee are citizens and inhabitants of California. It also found that appellants are engaged in interstate commerce and use the unregistered trade name “Stauffer System” in interstate commerce and that the action is a simple action for unfair competition, not joined with a substantial and related claim under the copyright, patent or trade-mark laws. The wrongful acts alleged in the complaint are the use by appellee of the name “Stauffer” and the use of advertising, similar to that in use, by appellants, in such a way as to deceive the public into believing that the services offered by appellee originate with appellants.

The trial court reached' the conclusion that the Trade-Mark Act…

(dissenting).

The record below and the proceedings here show that at no time have appellants sought to amend their complaint, which, on its face, shows no act of defendant affecting any interstate commerce of appellants. Since they do not seek such amendment, the district court’s judgment should be affirmed on that ground, and without more.

It is a wrong to. appellee to manufacture a contention raising an issue with which appellee was not faced below nor is faced here.

Since the transcript of the evidence was kept from the record by the act of appellants, and since they do not now seek .to háve it included, Rule 19 of .our rules gives to appellee the right to. have the Case decided solely on-the record as designated.' It is not claimed by the appellants that the evidence shows any-affecting of any interstate commerce.- I think it error and a wrong to appellee to hold that there is such - evidence and to' order the court to make a' finding thereon.-

Furthermore, assuming we can consider ■ the evidence before the district judge, I think it a violation of our Rule 19 not to order the transcript brought before us, to determine in this single proceeding whether the' district court…

On Petition for Rehearing.

The petition for rehearing is denied.

In the petition appellee raises one question which we believe meritorious. It is that inasmuch as a remand was made because of the state of the record for which appellee was not responsible appellants should pay their own costs. It is so ordered.

184 F.2d 962 87 U.S.P.Q. 40 STAUFFER et al. v. EXLEY. No. 12258. United States Court of Appeals Ninth Circuit. Sept. 8, 1950. Rehearing Denied Nov. 22, 1950. Forrest F. Murray, Harris, Kiech, Foster & Harris, Ford Harris, Jr., Jack Barry, Jr., all of Los Angeles, Cal., for appellants. Frank P. Doherty, William R. Gallagher and Frank W. Doherty, all of Los Angeles, Cal., for appellee. Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges. ORR, Circuit Judge. 1 This action was brought for the recovery of damages arising out of alleged acts of unfair competition and for the issuance of an injunction against the commission of future similar acts. A separate trial was had on the issue of jurisdiction, following which the trial court made findings of fact and conclusions of law and dismissed the complaint for lack of jurisdiction. The trial court found that appellant, Stauffer System, Inc., is a corporation of California and that both individual appellant and appellee are citizens and inhabitants of California. It also found that appellants are engaged in interstate commerce and use the unregistered trade name 'Stauffer System' in interstate commerce and that the action is a…