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ACQUIESCENCE AND ABANDONMENT
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Acquiescence may consist in either permitting a third party to use the title for a time without making any protest, or in allowing the defendant to use it for a long time before commencing the action to enjoin.
To constitute acquiescence there must be full scienter on the part of the plaintiff. Unless he knows of the infringing acts, he cannot be said to acquiesce in them.
It is no defense to an accounting and claim for damages to establish user of the title by third parties, unless in addition thereto the defendant shows acquiescence in such user.101
Where the plaintiff has knowingly permitted the defendant or others to use his title for a long time and has made no attempt to assert his rights as against them, he will not be permitted to pick out the defendant as a special infringer, pursue him alone, and recover an account of profits.
The English rule penalizes a plaintiff by refusing all relief including injunction. The American courts, how
101 Selig Polyscope Co. v. Unicorn Film Service Corp. (1917), 163 N. Y. Supp. 62. “Justification for this use of the plaintiff’s trade-mark cannot be found in the fact that the catalogues in evidence disclose the designation of other motion picture films by the use of the word ‘Rosary.’ So far as these catalogues have any value as proof, they indicate no more than that other persons in three instances have so named
their films at dates long after the plaintiffs Rowland and Clifford acquired their trade-mark by original adoption. Whether the films referred to were actually exhibited under the conditions which the plaintiffs might or might not have found to be injurious to their rights is a matter of speculation, but the defendant’s case is not aided by pointing to a possible invasion of these rights by others.”