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STE. PIERRE SMIRNOFF, FLS. v. HIRSCH

December 9, 1952

STE. PIERRE SMIRNOFF, FLS., INC.
v.
HIRSCH ET AL.



The opinion of the court was delivered by: Tolin, District Judge.

The Complaint alleges that defendants' use of the trade-mark "Smarkoff" for vodka infringes the following registered trade-marks owned by plaintiff:

The words "Ste Pierre Smirnoff
  Fls" and a picture of a crown       Registration No. 309,865
The words "Pierre Smirnoff"           Registration No. 326,253
Picture of a shield                   Registration No. 328,594
The words "Ste Pierre Smirnoff
  Fls" and a picture of a crown       Registration No. 330,899
The word "Smirnoffka"                 Registration No. 394,058
The word "Smirnoff"                   Registration No. 513,428

Unfair competition is also charged.

Plaintiff is a Connecticut corporation, organized January 12, 1939. It is the successor to a New York corporation of the same name which was organized September 19, 1933.

Defendants are citizens and residents of California.

In 1818 a Mr. Pierre Smirnoff began to make and sell vodka in Russia under his surname "Smirnoff". The business was continued in Russia by his descendants under the "Smirnoff" name. The "Smirnoff" vodka attained a considerable reputation in Russia.

After the Bolshevik revolution the owners of the "Smirnoff" business fled to Poland where they established a firm which did business in Poland, France and elsewhere.

In August 1933, in consideration of a lump sum, the Polish firm sold its rights for the United States of America to its trade-marks, formulas and processes to Mr. Rudolph Kunett. Mr. Kunett's rights were later transferred to the New York predecessor of plaintiff.

Beginning in 1934, this predecessor New York corporation began to sell "Smirnoff" vodka nationally, including sales in California.

The New York corporation secured Registration No. 330,899 on December 17, 1935, under the former Trade-Mark Act of 1905, which was replaced on July 5, 1947 by the Lanham Trade-Mark Act of July 5, 1946 which went into effect on July 5, 1947, 15 U.S.C.A. § 1051 et seq.

The registered mark No. 330,899 displayed the corporate name of the New York corporation, the picture of a crown, and the pictures of four medals granted for the original Russian vodka in 1877, 1882, 1886 and 1889. It also registered "Pierre Smirnoff" as No. 326,253 on July 16, 1935 under the Trade-Mark Act of March 19, 1920.

When plaintiff became the successor to the said corporation, it secured an additional registration under the Act of February 20, 1905. This registration was No. 394,058, issued March 17, 1942 for "Smirnoffka".

From the beginning the domestic vodka of plaintiff and its predecessor had been plainly marked and advertised as being of domestic origin.

During World War II defendants manufactured a vodka which they sold under a trade-mark and name dissimilar to those involved in this litigation. It enjoyed modest success in a firmly established market wherein defendants also sold other alcoholic beverages. During the war years there was difficulty in obtaining high-grade distilling material and some of defendants' established trade complained of a falling off of good-will for defendants' vodka because of inferiority of the product attributable to war conditions. After defendants returned to their prior standard of product, they sought to recapture such of the vodka market they had lost and to re-establish complete good will with such as they had retained. In aid of this project they renamed one of their brands "Smarkoff". Defendants' testimony is that they coined the name "Smarkoff" by combining parts of the names of two Russian cities. As compared to plaintiff's open, extensive and exclusive claim of exclusive right, defendants have used the name "Smarkoff" only since May 25, 1948. It ...


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