Mister Donut of America, Inc. v. Mr. Donut, Inc., Mr. Donut, Inc. v. Mister Donut of America, Inc.

Appellant brought suit in the District Court alleging trademark infringement. Appellee answered and counterclaimed alleging fraud in the procurement of the trademark registration, and seeking both injunctive relief and attorney’s fees. The trial court found against each party on the merits and dismissed both the complaint and counterclaim with prejudice. This appeal and cross-appeal were thereupon perfected.

Jurisdiction below was founded on 15 U.S.C., Sec. 1121 ; 28 U.S.C., Sec. 1338 (a) and (b); and 28 U.S.C., Sec. 1332 . We have jurisdiction under 15 U.S.C., Sec. 1121 and 28 U.S.C., Sec. 1291 .

Plaintiff-appellant, Mister Donut of America, Inc. (hereinafter for clarity, “plaintiff”), is a Massachusetts corporation with its principal place of business in that state and is primarily engaged in the promotion and franchising of retail doughnut shops under the name and style of Mr. Donut and Mister Donut. It began this business in Massachusetts in 1955 and now has more than 200 shops in numerous states ranging from coast to coast. Plaintiff’s first California shop opened in 1966; there were at the time of trial five such shops operating in California.

Defendant-appellee, Mr.…