ALLEN B. WRISLEY CO. v. GEORGE E. HOUSE SOAP CO. et al., 90 F. 5

JENKINS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court.

We need not determine whether, by virtue of the statute of the United States (21 Stat. 502), a trade-mark registered thereunder can be protected' by a court of the United States as a right arising under the laws of the United States, in the absence of diverse citizenship of the parties; nor need we determine whether, assuming-such right of jurisdiction, the relief in case of infringement should be limited to the protection of the right in the use of the trade-mark upon goods intended to be transported to a foreign country or in lawful commercial intercourse with an Indian tribe, since no case is made- here which would justify us in now passing upon these questions.

Beyond doubt, in the case of the infringement of a trademark existing at the common law, or in cases of unfair trade, in order to confer jurisdiction upon the courts of the United States there must exist diverse citizenship of the parties, and, as is universally held, that diverse citizenship must appear upon the record. There is here no allegation of the citizenship of either of the individual defendants, and the term “inhabitant” or “resident,” it is well settled, does not necessarily imply citizenship, and cannot be substituted for it. Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. 207.

The case therefore must be treated, in the absence of proper allegations of citizenship, as one between citizens of the same state; and, to bring the case within the provisions of the act of congress referred to, there must be a showing that the trade-mark involved .is used upon goods intended to be transported to a foreign country or in lawful commercial intercourse with an Indian tribe. There is a total lack of evidence in this record upon that point, so that we are unable to consider the case as one coming under the act of congress.

It is matter, of regret that the case is presented in such shape that we may not inquire into the merits, and determine the propriety of the order appealed from. In view of the frequent declarations of the supreme court that the primary duty of an appellate court of the United States is to ascertain both its own jurisdiction and the jurisdiction of the court below, which must appear upon the record, the failure to aver facts showing jurisdiction cannot be overlooked, even in the. absence of objection by the parties. When urged, as it is here, we may not disregard it.

We are constrained, therefore, to direct that the appeal be dismissed.