
    No. 186
    McDONALD v. PITZ
    Common Pleas, Franklin Co.
    No.—.
    Decided Jan. 2. 1924.
    1181. TRADE MARK—A trade mark cannot be transferred by itself. The good will and business must pass with it, or the transfer is invalid.
    Published only in Ohio Law Abstract
    Attorneys—Horace S. Kerr for McDonald; Edwin P. Corbett and John J. Mahoney for Pitz; all of Columbus.
   SOWERS, J.

Epitomized Opinion

Application for restraining order to prevent defendants from using trade mark known as “Krumm’s Best.” For many years the Krumm Milling Company on one of its brands of flour used this trade mark. The company became financially embarrassed and went into bankruptcy. The trustee in bankruptcy sold the good will, the corporate name and the records of the Krumm Milling Company to the defendant, Pitz, on October 4, 1922. Prior to that date McDonald began the .use of the trade mark upon a brand of flour distributed by him, and on April 24, 1923, registered the trade mark with the Commissioner of Patents at Washington, D. C. The sacks used by both parties upon which the trade name appears are similar in design and appearance. In denying the injunction the court held:

1. That a trade mark is analogous to the good will of a business and where the good will of such business is assigned or sold the trade mark, as a matter of law, goes with the good will.

2. A trade mark cannot be conveyed in gross by an independent transfer without also conveying the business to which the trade mark attaches, and an attempted assignment of a trade mark is void.

3. If suspension of business does not operate as an abandonment of good will or trade mark then the plaintiff has appropriated the trade mark without legal authority, and could not acquire any right to it as the trustee had previously sold the good will with the business to the defendant.  