Thompson Tank & Mfg. Co., Inc. v. Jesse Thompson, Dba Thompson Tank & Construction Co.

By this action appellant Thompson Tank & Manufacturing Co., Inc. (“TTM”) seeks damages from appellee Jesse Thompson, dba Thompson Tank & Construction Co. (“JT”) for false designation of origin of goods, unfair competition and infringement of common law trademark. Appellant’s claim is made under § 43(a) of the Lanham Act, 15 U.S.C. § 1125 (a), with jurisdiction based on § 39 of the Lanham Act, 15 U.S.C. § 1121 , and 28 U.S.C. § 1338 (a) and, asserting pendent jurisdiction under 28 U.S.C. § 1338 (b), under the California common law of unfair competition. Following a bench trial, the district court granted judgment to JT holding that it was without jurisdiction. This appeal followed. We affirm.

I.

Plaintiff-Appellant TTM is a general steel fabricator having its principal place of business in Long Beach, California. It took its present corporate name in 1950 and has adopted a distinctive monogram and the trademark “Thompson Tank.” Neither the monogram, the trademark nor the corporate name is registered under the federal trademark laws.

Defendant-Appellee JT since the early 1970s has operated as a sole proprietorship in the Bakersfield, California area engaged in the business of…