"salt water taffy"--maybe no Supreme Court case after all

Gerald Cohen gcohen at UMR.EDU
Wed Sep 4 21:10:51 UTC 2002

    Uh oh. Maybe there was no Supreme Court case after all. On March
30, 1925 the NY Times carried a story about the salt water taffy case
having been decided by the United States Supreme Court. (I reproduced
this article for ads-l). Then on April 12, 1925 the NY Times reported
that the ruling against Edmiston came from the Patent Office, that
Edmiston had a few more days in which to appeal this ruling to the
Court of Appeals of the District of Columbia, and that the case might
then proceed on to the Supreme Court of the United States.

    This is two weeks after the Supreme Court supposedly decided the case!

     Clearly the two NY Times stories were submitted by two different
people in a classic case of the right hand not knowing what the left
was doing. Meanwhile,
a search of Supreme Court Websites continues to turn up not a trace
of the supposed Edmiston case. John Baker and Fred Shapiro have
searched Westlaw and Lexis .Also, a librarian at the University of
Missouri-Rolla (Scott Peterson--thanks!) did some checking and then
at my request sent me the following e-mail:

>Here are the sources I tried:
>www.google.com  (Generic search engine catches a lot of material.)
>Lexis-Nexis Academic
>(This is on the library's web page under databases.  Select "Legal
>Research" to get to the court cases.)
>(Lists all citations and cases.)
>Scott Peterson

    As for the NY Times April 12, 1925 article, Kathleen Miller first
drew attention to it (8/20/2002 ads-l message):

>...The NY Times Obit for Edmiston reads pretty much the same as the one
>previously posted but has no mention of the court case. He appears in 3
>articles, his obit, the piece about the court case which Mr. Cohen posted
>and another in April 1925 about an appeal to the Patent Office. ...

   Working independently, Scott Peterson drew the April 1935 NY Times
article to my attention:
April 12, 1925 (Sunday), Sec. 1, p. 13, col. 2; title: "Denies Sole
Right To 'Salt Water Taffy'"--subtitle: "Patent Office rules John R.
Edmiston Cannot Claim Trade-mark as His Alone."
             "Special to the New York Times"
        "WASHINGTON, April 11--Candy interests are following with
close attention a temporary victory for manufacturers who contend
that John R. Edmiston of Wildwood, N.J., has not the exclusive right
to use the trade-mark 'Salt Water Taffy.'  The examiner for
interferences of the Patent Office has ruled that Mr. Edmiston is not
entitled to sole use of this trade name.

        "When Mr. Edmiston filed application for his trade mark some
years ago, the Patent Office decided that the name was 'descriptive'
and therefore he would have to apply under a proviso that for ten
years previous to 1905 he had, to the best of his knowledge and
belief, been entitled to the trade name.  Under such an application
thirty days are left open for any one to file an opposition, but this
was not done.  Under the proviso, however, contendants may at any
time apply for a cancellation of the registration, and this
application has been made by James Brothers of Atlantic City,
representing a large number of candy manufacturers.

        "The examiner for interferences now has ruled against Mr.
Edmiston.  The matter has until April 15 to appeal from his decision
to the Commissioner of Patents and, if that official should decide
against him, to appeal again to the Court of Appeals of the District
of Columbia and on to the Supreme Court of the united States.  The
Edmiston appeal has not yet been filed."

Gerald Cohen

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