Page:Urantia Foundation v. Burton.pdf/1

210 USPQ v. Shoppers Drug Mart, Inc., 434 F.Supp. 697, 193 USPQ 165 (E.D. Mich. 1976), case involved a much different set of circumstances. Thus, in reaching my decision, the court has not given any weight to plaintiff’s arguments of either constructive or actual use of the word “Mother’s” prior to that of the defendants.

The court also did not have to reach one of the defendants’ principal arguments. In light of the plaintiff’s registration for “Mother’s Pizza Parlour,” and faced with the assertion of rights ordinarily accompanying registration, the defendants argued that a junior user who is the first to adopt a disputed mark in a limited geographical area is exclusively entitled to exploit the mark in that limited area, relying on Hanover Star Milling Co. v. Metcalf, 240 US. 403 (1916), and United Drug Co. v. Rectanus Co., 248 U.S. 90 (1918). Because no importance was given to plaintiff’s registration and, thus, no priority of use accorded to plaintiff, defendants’ argument was not material and did not have to be reached. In any case, however, the continuing importance of the Hanover-United Drug exception is open to much question since the passage of the Lanham Act, especially 15 U.S.C. 1072. See Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 362-64, 121 USPQ 430, 432-435 (2d Cir. 1959). But see Value House v. Phillips Mercantile Co., 523 F.2d 424, 187 USPQ 657 (10th Cir. 1975).

The defendants’ motion for a preliminary injunction is denied.

The foregoing opinion constitutes the findings of fact and conclusions of law of this court, in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

The plaintiff is directed to prepare an order in accordance with this decision and submit it to the court, with notice to the defendants.

So ordered.