The SEVEN-UP COMPANY, Plaintiff-Appellant, v. BLUE NOTE, INC., Defendant-Appellee, 260 F.2d 584

KNOCH, Circuit Judge. Plaintiff, owner of the registered trademark for a beverage “Seven-Up,” sought damages and injunctive relief against alleged passing off of a beverage, other than plaintiff’s product, to persons requesting plaintiff’s product at defendant’s restaurant and place of entertainment. In support of its challenged assertion that the jurisdictional requirement had been met, plaintiff contended that the value of its good will — the right sought to be protected — constituted the measure of the amount in controversy.

In a carefully reasoned memorandum, the District Court came to the conclusion that plaintiff had failed to sustain its burden of establishing the existence of federal jurisdiction. The District Court relied on Seagram-Distillers Corp. v. New Cut Rate Liquors, 7 Cir., 1957, 245 F.2d 453, wherein this Court held that the amount in controversy was measured by the extent of the injury caused or threatened, unless the action were predicated on a theory of total destruction. This was consistent with the holding in Snap-On Tools Corp. v.

Winkenweder & Ladd, Inc., 7 Cir., 1957, 250 F.2d 154, mistakenly cited by plaintiff in support of its attempt to distinguish Seagram as dealing with unfair competition in retail sales price in contrast to plaintiff’s charge of unfair competition by passing off. However, as noted by the District Court, KVOS, Inc., v. Associated Press, 1936, 299 U.S. 269, 57 S.Ct. 197, 81 L.Ed. 183; and McNutt v. General Motors Acceptance Corp., 1936, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; cited in the Seagram case, clearly indicate the reasoning followed by this Court.

Plaintiff argues that this case may fall within the same class of cases as that represented by Snap-On, or that jurisdiction may exist solely by reason of the trademark infringement charged. Neither argument is supported by plaintiff’s pleadings or evidence. In holding adversely to plaintiff’s assertion of federal jurisdiction by virtue of the Lanham Act, 15 U.S.C.A. § 1051 et seq., the District Court relied on our ruling in City Messenger of Hollywood Inc., v. City Bonded Mess. Serv., 7 Cir., 1958, 254 F.2d 531, certiorari denied 79 S.Ct. 45. Judgment affirmed.