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TRADE-MARK IN TITLE OF CARTOON
473
for a number of years as a heading to a comic section of its paper. In the case at bar no such situation existed. Under all the circumstances here appearing it
may not be fairly held that the
plaintiff had actually used “Mutt and Jeff” as a title of Fisher’s comic strips, even if it be assumed that a strip may be regarded as a comic section of the paper. The fact is that during the entire period of its contract with Mr. Fisher plaintiff published these strips without any title of its own. The mere circumstance
that in its advertisements the
cartoons were referred to in connection with the words “ Mutt and Jeff” is of no special significance, since it is also the fact that since September 22, 1910, Fisher published upwards of 300,000 copies of his books of cartoons selected from those which had appeared in the American under the title of “The Mutt and Jeff Cartoons by Bud Fisher.” It is thus evident that the plaintiff was not the first user of the words “Mutt and Jeff” as a title or trade-mark, and that these words had not been appropriated by it as a trade-mark or trade name to designate its comic section or a portion thereof, except upon the few occasions during the expiring
months of the agreements, aftei the plaintiff realized that a renewal of the Fisher contract was out of the question. It is clear that this is not a case where the plaintiff had been in the habit of labeling its comic strips with a distinctive mark, or where it may be fairly said that it had acquired by user the Vords “ Mutt and Jeff” as against Fisher. Nor is this a case where it may be held that the plaintiff, being entitled to the exclusive services of Fisher in the drawing of the cartoons in question, became entitled to the use of the title “ Mutt and Jeff” since those words originated with Fisher before he entered in the employ of plaintiff and the cartoons had already acquired a reputation as “Mutt and Jeff” cartoons. The facts in this case, too, are different from these appearing in Jaeger's Co. v. Le Boutillier, 47 Hun, 521, where it was shown that Professor Jaeger had never been engaged in the business of selling goods and therefore had never acquired any proprietary right in a trademark. On the other hand, the facts established in this case are, that Fisher was most actively engaged for some time prior to his employment with plaintiff in producing the cartoons with