 months, and it terminated more than 8 years prior to the commencement of the suit. As the plaintiff is seeking to recover damages by virtue of the defendants' conspiracy for only five years (the period of limitations) preceding the institution of the suit, it seems obvious that the allegedly deceitfully procured and unfairly executed sales agency by the Dickinson Fuel Company could not possibly have been an effective cause of the plaintiff's damages sustained during this five-year period. This allegation may, therefore, be dismissed from further consideration. The only remaining act of the defendants alleged as showing a violation of the Anti-Trust Act and causing damage to the plaintiff is the registration of the trade mark. The exact date of this registration is not stated in the declaration but was admitted to have been April 1, 1924. While the declaration alleges that the registration of the trade mark was procured illegally and unlawfully, it does not specify in what the illegality and unlawfulness consisted. Nor does it show that the plaintiff has ever taken any action to have the trade mark cancelled as authorized by section 93 of title 15 USC (15 USCA § 93), or to bring an action for damages against the Black Band Consolidated Coal Company, the registrant of the mark, as authorized by section 104 of title 15 USC (15 USCA § 104); nor does it appear from the declaration that the plaintiff has asserted its rights in litigation or otherwise to continue to sell its coal as "Black Band" coal despite the allegedly unlawful registration of the trade mark by the registrant.
There is much internal evidence in the amended declaration itself and in facts of which we may fairly take judicial notice, that the substantial grievances complained of are private rather than public. The subject matter relates to coal mined from a particular seam in a very limited coal mining area in one county of West Virginia. There are only three producers of this particular bituminous coal, the defendant, the Black Band Company, having an annual production of 100,000 tons; the Kanawha Coal Company, producing 30,000 tons, and the plaintiff, having an actual production of 50,000 tons per year with an allegedly possible output of 70,000 tons per year, or in all, not more than 200,000 tons per year for all three producers, or, 1,000,000 tons in the five years prior to the institution of the suit, as compared with the total output for the years 1928-32, inclusive, for the whole country, amounting to 2,191,016,256 tons. During the same years the amount of bituminous coal produced in West Virginia was 578,181,824 tons. It is mathematically obvious that the amount of bituminous coal produced from the Black Band seam in West Virginia is almost infinitesimal as compared with the total country-wide production, and it is not reasonable to infer that the public interest has been appreciably affected by the private controversy between the parties growing out of the registration of the name "Black Band" as a trade mark applicable to the defendants' coal. (Note) We cannot accept the appellant's contention that the alleged superior quality of Black Band coal so sets it apart from other bituminous coal that the public interest must thereby be considered to have been affected. In this respect the situation is not dissimilar to that dealt with by the Supreme Court in the first Coronado Case (United Mine Workers of America v. Coronado Coal Co.), 259 U. S. 344, 412, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762, where the court held that an alleged conspiracy to suppress the production of 5,000 tons a week of coal, in a national weekly production of from 10,000,000 to 15,000,000 tons, or a production in the particular district of 150,000 tons a week, was too negligible an amount to have any appreciable effect upon the interstate price of coal. Other cases holding that the public interest is not involved unless the restraint of interstate trade is substantial in amount are McLatchy v. King (D. C. Mass.) 250 F. 920; Marienelli v. United Booking Offices of America (D. C. S. D. N. Y.) 227 F. 165; Dueber Watch Case Mfg. Co. v. E. Howard Watch & Clock Co. (C. C. S. D. N. Y.) 55 F. 851; Konecky v. Jewish Press (C. C. A. 8) 288 F. 179; Standard Oil Co. v. United States, 283 U. S. 163, 176, 51 S. Ct. 421, 75 L. Ed. 926; Indiana Farmer's Guide Pub. Co. v. Prairie Farmer Pub. Co., 70 F. (2d) 3, 5, (C. C. A. 7). Compare Albert Pick-Barth Co. v. Mitchell-Woodbury Corp., 57 F.(2d) 96 (C. C. A. 1); Mitchell Woodbury Corp. v. Albert Pick-Barth Co., Inc., 41 F.(2d) 148 (C. C. A. 1), reversing (D. C.) 36 F.(2d) 974.
*890 We do not mean to hold that the illegally procured registration of a trade mark may not properly be considered with other well pleaded acts of the defendants as a part of a larger plan to violate the Anti-Trust Act where it can be seen from facts alleged in the declaration that there has been a substantial violation of the public interest protected by the Act. See Standard Oil Co. v. United States, 283 U. S. 163, 51 S. Ct. 421, 75 L. Ed. 926. But here we find nothing alleged beyond the bare fact that a trade mark was procured and rights thereunder asserted by the defendants without the allegation of any other facts, apart from general averments of violation of the Act as conclusions of the pleader. It is true that the mere registration of the mark is not itself conclusive, but the presumption is of validity and regularity in the registration until it is overcome by proof to the contrary. And we do not think the mere general allegation that the mark was illegally and unlawfully procured is sufficient of itself to show an intent to monopolize trade in the subject matter to which the mark is applicable, especially where it does not clearly appear that the public interest was substantially involved. Nor does the allegation in the declaration that the defendants knew the mark was not susceptible of registration substantially better their case in this respect, in the absence of some alleged fraudulent act or misrepresentation. An obvious possible objection to the mark was that it was descriptive and a geographical term, but even such terms have been held good marks in certain cases. In the absence of specific fraud alleged, the matter of registration was evidently one of opinion only.
The Circuit Court of Appeals for the Sixth Circuit recently dealt with a somewhat similar case in International Visible Systems Corp. v. Remington-Rand, Inc., 65 F.(2d) 540, where an allegation, that the defendant maliciously and without probable cause and with intent to destroy business of the plaintiff and smother competition instituted a pretended patent infringement case, was held not sufficient to sustain a declaration in a civil suit under the Anti-Trust Act.
The appellant contends that under this statute the period of limitations for this case is five years, while the appellees contend that it is only one year. Which view is correct is to be determined not from the local West Virginia decisions but from federal decisions construing the Act of Congress in the light of the common law and determining whether the nature of the civil action is one that survives or abates upon the death of the party. And on this question the federal decisions are in conflict. See Caillouet v. American Sugar Refining Co. (D. C. La.) 250 F. 639; Bonvillain v. American Sugar Refining Co. (D. C. La.) 250 F. 641; Haskell v. Perkins (D. C. N. J.) 28 F.(2d) 222; Perkins v. Haskell (C. C. A. 3) 31 F.(2d) 53, holding that the cause of action does not survive; while Sullivan v. Associated Bill Posters, etc. (C. C. A. 2) 6 F.(2d) 1000, 42 A. L. R. 503 (Circuit Judge Hough dissenting); United Copper Securities Co. v. Amalgamated Copper Co. (C. C. A. 2) 232 F. 574; Imperial Film Exchange v. General Film Co. (D. C. N. Y.) 224 F. 985, hold that it does survive. It is, however, unnecessary for us to decide in this case whether the period of limitations is five years or one year because under either holding, in our opinion, the declaration is demurrable on the ground of limitations in view of what is now to be stated.
*891 The heart of the plaintiff's case lies in the allegation that its business profits were impaired during the period of five years prior to the commencement of the suit by the defendants' insistence on its alleged trade mark rights. The declaration does not show what resistance the plaintiff made to the defendants' claims regarding the trade mark but the inference from the allegations of the declaration is that it was unable to successfully combat them in the trade. This obviously could be true only if the trade mark remained uncancelled, because it would be idle to contend that the defendants' claims could have been the proximate cause of the plaintiff's loss if the plaintiff had successfully asserted the invalidity of the mark. While the declaration is entirely silent as to what defensive measures, if any, the plaintiff used against the defendants' claim it appears as one of the grounds of demurrer that the trade mark was in fact cancelled more than five years prior to