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27 Trademark Rep. 501 (1937)
Tess Gardella, Also Known as Aunt Jemima v. Log Cabin Products Co., Inc., General Goods, Inc., and National Broadcasting Company

handle is hein.journals/thetmr27 and id is 603 raw text is: TESS GARDELLA V. LOG CABIN PRODUCTS CO., ET AL. TESS GARDELLA, also known as AUNT JEMIMA V. LOG CABIN PRODUCTS CO., INC., GENERAL GOODS, INC., and NATIONAL BROADCASTING COMPANY United States Circuit Court of Appeals, Second Circuit May 10, 1937 UNFAIR CoMPE~rroN-AUNT JEMIMA'---UsE OF STAGE NAME Iw RADIO BROADCAST-STATE STATUTES, NEW YORE. In an action brought under the New York Civil Rights Law (Sects. 50, 51), which prohibits the use of a name, portrait, or picture of a living person for advertising purposes without consent, appellee, one Tess Gardella, known on the stage as Aunt Jemima, with which name she had become identified to the theatre-going public, sued appel- lant for damages for employing in a radio broadcast advertising Aunt Jemima Pancake Four, a certain colored actress and a colored enter- tainer, both of whom were referred to as Aunt Jemima. Held that, inasmuch as the name Aunt Jemima had, prior to the year 1890, been adopted as a trade-mark by predecessors of the Quaker Oats Company and its registration by them held valid, the appellants, sponsors of the said broadcast, needed no authority for the use of the name Aunt Jemima. Held, therefore, that there was no violation of the statute. UNFAIR COMLETITION-INJURY TO REPUTATION BY DECEPTION OF PUBIC. In the case at issue, where appellee, known on the stage as Aunt Jemima had given such name a secondary meaning, she may be pro- tected against counterfeiting, which deceives the public; nor would appellants have a right to trade upon her reputation or to pass off an imitation of her singing or form of entertainment which caused deception or was likely to do so. UNFAIR COMPETITION-Loss OF REPUTATION WITH RADIO PUBLIC-SUITS-- DAMAGES. Damages can be granted only upon the theory of malicious intent, which, in the case at issue, was held not to have been establi3hed. UNFAIR COMpTrTON-SuITs--PARTIES. Where, in the case at issue, the broadcast, against which appellee complained, was arranged by appellants' agent without authorization by appellants, held that such act by the agent did not make appellants participants in the offense. UNFAIR COMPETITION-USE OF NAME OF STAGE CHARACTER IN RADIO BROAD- CAST. Notwithstanding that the entertainers engaged by appellants to broadcast an advertising program featuring Aunt Jemima may have imitated to some extent appellee's voice and manner, it did not follow that deception was established, as the words Aunt Jemima invariably were connected in the broadcast with appellant's pancakes and syrups. In equity. Action for alleged unfair competition in the use of a stage name. On appeal from decision of the United States Dis- trict Court, Eastern District of New York. Reversed.

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