From the inception of the use of this mark by sales to the consuming public, the name "Saunders" was used in connection with the mark "Wrist Rocket" and continued to be so used with no mention of Ellenburg or his companies with the exception of a point of sale box claimed to have been used for approximately one year.
Of course, defendant cannot defeat an infringement action by claiming that its name accompanied the mark, and therefore there was no deception, Menendez v. Holt, supra, U. Shaver v. Goldsmith, 37 F. But the Court is not presented here with a question of abandonment of the mark "Wrist Rocket. The briefs indicate this to be the pivotal controversy.
Although many cases speak of the necessity for the trademark to indicate the "origin" of the article, it is clear that the owner of the mark need not be the manufacturer of that article. In finding that a seller or dealer of flour had obtained the exclusive right to a trademark, the Supreme Court stated:. See also Electronic Communications, Inc. Ivins' Son, Inc. Plaintiff contends this is not such a case because Saunders did not control the quality of the slingshot. The evidence does not support such a contention.
Plaintiff also contends that since defendant was his distributor the principle is inappropriate. In the absence of a written agreement concerning the use of the mark, and in the absence of a showing that the plaintiff had used the mark previously, the fact that defendant was a distributor does not preclude application of Menendez. Plaintiff did not license defendant to use this mark when the parties started to deal together.
The mark had not yet been invented, let alone been adopted and used by the plaintiff. Defendant was the first to affix tags on the slingshots in after the name was invented. These slingshots were sent to dealers and jobbers from Saunders' company, identified as his products, and he was the one looked to when the "Wrist Rocket" proved defective. As far as the public was concerned Ellenburg's company was practically unknown. Although one may not lose rights to a trademark because the public is unaware of one's identity, Shaver v.
In Distillers Brands v. Again, in Atlas Beverage Co. The Court finds that 1 Ellenburg had no prior right to the mark when he and Saunders started their relationship; 2 that there was no agreement between them concerning the use of the mark; 3 that Saunders invented the mark and first affixed it to the slingshot in the fall of as Ellenburg's distributor; 4 that the defendant maintained the quality and uniformity of the slingshot through supervision of the item and recommended changes in its construction; 5 that the public bought the items on the reputation and responsibility of the defendant without knowledge of the plaintiff and identified its origin with the defendant.
Therefore, the Court finds that defendant adopted and used this mark prior to any use thereof by the plaintiff. The circumstances and facts of this case compel the conclusion that the only use being made of the mark by the plaintiff prior to and at the time of its registration was as an implied licensee of the defendant. Plaintiff was allowed to ship a number of the slingshots through mail orders and to use the carton designed by defendant to facilitate the sales.
However, there is no evidence to support a finding that defendant's consent for plaintiff to use the mark in conjunction with those sales was uncontrolled or otherwise resulted in a loss to the defendant of the exclusive right to use that mark which it obtained by prior adoption and use. The law is clear that Ellenburg acquired no rights to the trademark solely by its registration in and the facts show that, with the exception that plaintiff was the registered owner after that date, its use of the mark was virtually under the same circumstances as it was prior thereto, that is, as defendant's licensee with permission to use the mark in conjunction with the sale of the slingshots which it manufactured.
There is no evidence that the defendant abandoned or otherwise lost its rights as exclusive owner of the mark through any actions of the parties after , the plaintiff continuing as an implied licensee. Menendez v. Plaintiff's right to use the mark as an implied licensee of the defendant terminated when the relationship of the parties terminated.
The only use made by the plaintiff independent of the defendant was after that date. From the foregoing, the Court not only finds that plaintiff's infringement action must fail, but also that Registration No. Plaintiff has never acquired a right to use this mark and its mere registration did not create such a right.
In the absence of the affidavit of incontestability previously mentioned, there is no doubt that the Court could order cancellation on the findings of prior use alone.
The incontestability affidavit puts a different light on the status of the parties, however. But the Court does not find that it alters the result in the present case. In addition to the above statement of authority in this area, 15 U. The mark becomes incontestable in favor of a registrant after five years:.
The use of the mark "Wrist Rocket" by plaintiff herein was, first of all, not a legal "use" recognized by the trademark law as it and its predecessors were only implied licensees, but even the use as it was cannot oust the defendant's rights to the mark.
The incontestability affidavit cannot aid the plaintiff as against the defendant in this case. Therefore, the Court finds that the Commissioner of Patents shall cancel the present registration in plaintiff's name and should issue one to the defendant upon proper application therefor. See Massa v. Jiffy Products Co. Next, plaintiff contends that defendant breached a fiduciary duty owned to plaintiff by failing to give plaintiff a reasonable notice of termination of their relationship and by selling certain replacement rubbers during their relationship which were not manufactured by plaintiff.
As to the sale of the replacement rubbers, the Court finds that there is evidence to sustain the allegation that such sales occurred prior to the termination of the relationship. In , defendant developed what he considered to be an "improved" method of constructing the pouch assembly which connected to the rubbers and was sold along with them. It consisted of a plastic, one-piece pouch assembly to replace the three-piece leather assembly manufactured by plaintiff.
A patent was applied for on this pouch in July of and issued in May of Steven Ellenburg testified that he saw a slingshot in Saunders' home sometime in the summer of which incorporated this new pouch assembly.
Saunders admitted that he did sell the plastic pouch assembly about four to six months prior to the termination of the arrangement. Sven if such a duty were found, plaintiff has failed to prove his allegations that Saunders breached this duty by selling his own replacement parts instead of Ellenburg's. Regarding the claim that the relationship was terminated on too short of notice, a succinct review of the facts is in order. The Gauthier Patent that Saunders had acquired in expired in This precipitated increased competition in the arm-brace slingshot market and defendant sought to negotiate a lower sale price from Ellenburg which price was based upon a production analysis computed by Saunders' son.
Defendants testified that the lower price could have been attained by streamlining the production of the units and that with this streamlining the cut in cost would have been reasonable and that they were willing to help plaintiff with this area. No agreement was reached and on October 19, , plaintiff was notified that the business relationship would terminate in thirty days.
Plaintiff immediately sought a new outlet for the slingshot and by December 10, , had executed a distributorship contract with the Iowa dealer with whom it had dealt prior to the relationship with the defendant. Plaintiff asserts that it was entitled to more than thirty days' notice of termination whereas defendant contends thirty days' notice was sufficient. Plaintiff's claim rests on its position that the relationship between it and the defendant was a distributorship or sales agency and that, as such, a reasonable notice of termination was implied and the thirty days was not reasonable, particularly in light of the time of year that it was given, such time being a crucial season for advertising and marketing the slingshots.
On the other hand, the defendant contends that the relationship of the parties was not a distributorship but was merely a buy-sell agreement, indefinite in time, and terminable at the will of either party without cause. It further contends that, in fact, a cause did exist because plaintiff arbitrarily refused to negotiate a lower price when it realized that the increased competition forced upon the defendant may cause the defendant to stop doing business with it unless that price was lowered.
Further, the defendant contends that the thirty days was sufficient as that was the period previously agreed upon in the agreement which was never accepted by the defendant. The Court is of the opinion that the relationship of the parties throughout the seventeen years of their doing business was more than a buy-sell agreement as suggested by the defendant.
On the other hand, the evidence does not support a finding that defendant was plaintiff's agent in the strict sense. To determine the type of relationship that existed between these parties in , the Court must look to various factors as there was no written agreement defining their relationship in and there had not been such a written agreement since But the plaintiff asks the Court to look to the terms of the agreement as some evidence of the relationship that existed at all times during this seventeen year period.
The Court finds that both parties deemed the agreement as controlling their initial business relationship even though it referred to the "Howard Wrist Locker Slingshot" as opposed to the "Wrist Rocket" and even though its terms were not precisely followed. The defendant contends to the contrary, but in the correspondence between the parties in the negotiations, defendant implicitly acknowledged the existence of the agreement and made no intimation that it had not been in effect for the previous ten years for the "Wrist Rocket" and in fact referred to portions of that agreement as allegedly breached by the defendant during the previous ten years.
As noted, the agreement clearly was not followed to the letter. That agreement granted defendant the exclusive agency for distribution and sale of the "Howard's Wrist Locker Slingshot" and delineated the obligations of the parties, to wit: plaintiff was to retain a right to advertise and sell to retailers but could not sell to dealers and jobbers; plaintiff was to supply defendant with the units boxed and ready for shipment.
Defendant was to present the items to dealers, wholesalers and the trade in general through advertising, showings, etc. Accounts were to be determined monthly and net amounts transferred to the plaintiff. The agreement was for five years, automatically renewable for another five unless notice to terminate was given prior to the expiration of the original five-year term.
No discounts were paid and plaintiff kept no records of the defendant's sales or selling programs but rather plaintiff was paid monthly on the basis of sales slips prepared each time he delivered the units to the defendant's place of business. However, the evidence clearly shows that the pay formula utilized throughout the relationship was essentially the same as the one defined in the agreement and plaintiff did not sell to those whom he was forbidden to do so, except on a few occasions which terminated upon defendant's reprimand.
Therefore, whether the agreement was followed in all aspects or not, the actions of the parties between and show that they deemed the portion of the agreement that gave defendant the exclusive right to sell to a certain portion of the job market an effective aspect of their relationship.
The reason the terms of the agreement and the actions of the parties during the to term are important in the Court's consideration of the type of relationship involved in is because after no written agreement was entered into and the parties carried on their business for the following years under substantially the same relationship as they had prior to that time.
That is, plaintiff continued to manufacture the "Wrist Rockets" and box them in boxes furnished by the defendant and deliver them to the defendant's place of business. The plaintiff continued to refrain from selling to those that were within the defendant's exclusive market for the most part and in a few instances that plaintiff did encroach upon this market, he was reprimanded by the defendant and ceased doing so. The defendant continued to present the product to the archery trade by various methods throughout this term as he had done previously.
At no time during the seventeen years did the defendant have a quota to sell and he continued to sell other products at all times, including those manufactured by his company and others. On at least one occasion, the defendant changed the retail price without consulting the plaintiff, although the increase was eventually noted by and passed on to plaintiff. Defendant attempted to protect himself by obtaining an assignment of the patent on the slingshot in and by purchasing liability insurance on the product, evidencing his view that the risk was on him in the event of legal complications arising from the sale of the slingshot.
In general, the defendant controlled the changes that occurred in the design of the Wrist Rocket throughout this time and essentially controlled the marketing of all the units delivered to him. A review of the foregoing facts shows that no strict agency relationship existed at any time throughout the period of these individuals' dealings.
Comment b , to the above section, sets forth certain recognized indicia of a buyer-seller arrangement over that of agency. Those factors aligned against the circumstances of this case certainly show that Saunders was acting for his own benefit in selling the goods as opposed to simply selling them for the benefit of Ellenburg.
This would mitigate in favor of a buy-sell arrangement rather than agency. Thus, the Court does not find that this was a pure buy-sell arrangement. The arrangement existing in was essentially one whereby the plaintiff as manufacturer would deliver the slingshots to the defendant as his distributor, the latter to use his best efforts to sell and advertise the product for the benefit of both individuals, Saunders having the sole market for the slingshots to certain customers.
As such, the relationship was one adapted to the unique abilities of each party. Millett Co. Park and Tillford Distillers Corp. See also Bendix Home Appliances v.
Radio Accessories Co. Theatrical Stage E. Hauff Hardware, Inc. Long Manufacturing Co. Drewrys, Ltd. Wisconsin Liquor Co. In situations where such a relationship exists and there is no provision in the agreement for termination, courts have determined that there is implied in said agreements a reasonable duration and a right to reasonable notice of termination.
See also Ansbacher-Siegle Corp. Miller Chemical Co. The above cases were dealing with situations where the distributor was suing for an untimely cancellation of the distributor contract.
However, the rules applicable for reasonable notice of termination appear to be as applicable to the manufacturer as they are to the distributor. As stated in California Wine Association v.
In this situation, the parties had dealt in substantially the same manner for seventeen years. The plaintiff's sole outlet to dealers and jobbers was exclusively through the defendant. Similarity of the quandries between Ellenburg in this case and the distributors in the other cases cited needs no further amplification.
In both instances, the complaining parties were dependent upon their cohorts to respectively sell or deliver. Since the Court deems the above rules applicable to the present situation, the next question becomes what was reasonable in light of the circumstances of this case. The arrangement in effect in had continued essentially from when the agreement terminated by its own terms and the parties failed to reach agreement on a new contract.
The Court, therefore, finds that any right to a reasonable duration was not breached by the defendant in this case. However, as to the reasonable notice of termination, a different question arises.
Defendant contends that the thirty days was sufficient notice, particularly in light of the fact that plaintiff refused to negotiate a lower price to the defendant for slingshots.
Defendant's reference to the agreement and the thirty-day termination clause therein is of little benefit in this case. A close reading of that agreement shows that the thirty-day termination provision was only applicable if the parties did not wish the automatic renewal clause to come into effect.
Subsection a of the first paragraph specifically provides that during the term of five years, the instrument was "not revocable" except at the express consent of both parties.
Thus, the thirty-day provision in the agreement does not carry the weight that defendant claims. Little evidence was presented to the Court as to what a reasonable notice of termination would have been under the facts and circumstances of this case.
From a reading of the above cases, however, it appears to this Court that said notice depends on the peculiar facts and circumstances of each case. For instance, in J. In the present case, the parties had dealt for ten years under the agreement and for nearly seven years under the oral agreement. The extensive duration of this business arrangement certainly required more than a summary thirty-day notice that the prior seventeen years of dealing was to completely end.
The Court finds that a reasonable notice of termination under the facts and circumstances of this case should have been three months prior to the date the arrangement was to actually terminate.
The Court notes that even though the plaintiff's refusal to lower its price might otherwise be found to be sufficient cause to bring the business arrangement to a close, the fact that differences in pricing the unit had arisen throughout the seventeen years and had always been settled in some point or another between the parties, still leads it to the conclusion that failure to agree on reduction in the cost was not sufficient cause to summarily terminate the relationship on thirty days' notice.
The Court has previously referred to defendant's prayer for cancellation of plaintiff's registration. Defendant also asks the Court to award damages under 15 U. Schwinn Bicycle Co. The basis for defendant's claim of falsity and fraud are various statements made by plaintiff in his initial application for registration and in his filings regarding the incontestability affidavit.
In the application for registration plaintiff stated that the mark had first been used on goods on September 30, , and was first used in interstate commerce in October of He further stated under oath that he "believes himself to be the owner" and "to the best of his knowledge and belief" no one else had the "right to use" the mark in commerce. He attached a specimen of the mark which had been taken from a point of sale box. The Saunders name had been cut off. In July of plaintiff submitted an affidavit under Section 15 of the Act, 15 U.
Saunders claims the references set forth in plaintiff's initial application were false and fraudulently made because plaintiff knew that Saunders was using the mark at the time the application was submitted.
Thus, the failure to apprise the Patent Office of defendant's use, and in that regard, the cutting of the specimen, are asserted by defendant to require the inference that plaintiff wilfully attempted to mislead the Patent Office and procure the registration thereby.
As to Ellenburg's assertion in the application that he believed himself to be the owner of the mark and that no one else had a right to its use, the Court does not find this pronouncement as to plaintiff's belief dishonestly made.
Merely because he knew Saunders was using the mark at that time is not tantamount to any right to its use. In fact, failure to mention the defendant as an owner or one with the right to the mark was entirely consistent with the theory that was presented in this Court that Saunders' use of the mark during this whole period was only for the plaintiff and that Saunders had no rights to the mark. While deadly, the weapon was large and unwieldy.
Evidence of early slingshot use was also found in Scotland. Archeologists wanted more information on how the Romans won the battle at Burnswark. After searching with a metal detector, they found lead projectiles buried in the hill the Scottish defended which they were able to trace back to a Roman invasion of Scotland years ago.
After doing some experiments with models, these slingshots are thought to have been as deadly as a modern. A well-trained soldier with a slingshot could have probably hit a person from yards away, or even more. It appears that the Romans were able to lay siege to the Scottish fort from their military camp and won. The version of the slingshot as most people now conceive it was probably not invented until when people had access to vulcanized rubber, or natural rubber mixed with several chemical additives to make it stronger and more flexible.
The rubber was usually obtained from salvaged bike tire inner tubes cut into strips. The slingshot was a relatively small and simple weapon, so when they started being used, they were usually made by hand and used as toys. Slingshots continued to be used exclusively as toys until after World War Two, when the slingshot began being used as a legitimate weapon as well. The slingshot began being mass-produced in by a company called Wham-O. Today Saunders Archery Company continues to innovate with a line of flatband slingshots which use a locking clip system for attaching and power tuning of bands.
Nowadays there are enormous variations and designs of slingshots. Some of them serve one purpose while other another. It is often not as easy as it sounds, especially for beginners, to choose a perfect slingshot for them. Therefore, we compiled a list of the 10 best slingshots on the market that you can compare and choose the one that fits your needs the best. Hunting Slingshots. Replacement Rubber Bands. Learn How to Shoot Slingshot. History of Slingshots A slingshot has been often seen in the hands of kids and is mostly understood to be toy item.
Traditional Design of a Slingshot As mentioned earlier, a slingshot is based on a very simple design. Who Invented Slingshots? When Were Slingshots Invented?
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