Henry J. Frolich, D/B/A Encino Chemicals v. Miles Laboratories, Inc.

This is an appeal from the granting of a summary judgment by the trial court. It is a diversity case. (Facts supporting diversity jurisdiction were pleaded, but not that it was such a case.) Defendant-appellee herein originally (in another action) sued plaintiff-appellant herein to enjoin Frolich’s use of the trademark “Milk-O-Seltzer,” alleging infringement with Miles Laboratories’ “Alka-Seltzer” trademark. The district court found no infringement ( 195 F. Supp. 256 ). This court affirmed in a split decision ( 296 F.2d 740 ). Petition to the Supreme Court of the United States for certiorari was denied ( 369 U.S. 865 , 82 S.Ct. 1030 , 8 L.Ed.2d 84 ).

Frolich then filed this “damage suit” against Miles Laboratories, arising from the unsuccessful action for infringement filed by Miles Laboratories, and the cost to Frolich of defending that suit, both in “valuable time and much money.” Frolich “prays” for no relief, but his complaint asks for over a million dollars in damages, and contains a “Conclusion”. Appellant Miles Laboratories, Inc., pleaded in defense:

(a) Its previous successful attacks, either in the courts or before the Patent Office, on the use, as an infringing use, of…