## Facts

- Elgin National Watch Company sued in equity to enjoin Elgin Clock Company from using “Elgin” in connection with timepieces not made by plaintiff.
- Defendant manufactured or assembled automobile clocks and used a corporate/business name including “Elgin.”
- Plaintiff asserted that, for watches and clocks, “Elgin” identified plaintiff as the source and that defendant’s use risked consumer confusion and misappropriation of goodwill.
- To prove public and trade understanding of “Elgin,” plaintiff offered an affidavit from Arthur L. Lynn, an advertising executive, describing a questionnaire sent to retail jewelers nationwide.
- The questionnaire asked about jewelers’ experience, familiarity with Elgin watches, whether “Elgin” signified a particular maker, and who they would think made an “Elgin Clock Company” automobile clock.
- Lynn stated that, based on the responses, use of “Elgin” on timepieces would lead the public to believe plaintiff made them; roughly 2,000 returned questionnaires were attached.
- Plaintiff petitioned for leave to file Lynn’s affidavit and exhibits as testimony under Equity Rule 48; defendant objected on timing and evidentiary grounds, including hearsay and an asserted trade-name/trademark distinction.

## Issues

1. Whether the court could permit filing of an expert affidavit with survey exhibits under Equity Rule 48 despite defendant’s claim the application was untimely and the rule should be strictly construed.
2. Whether an expert opinion on public understanding of “Elgin,” informed by questionnaire responses gathered out of court, was admissible or was barred as hearsay or otherwise improper.
3. Whether characterization of “Elgin” as a trade name rather than a trademark affected admissibility of the proposed expert affidavit evidence.

## Decision

- The court granted plaintiff’s petition and allowed Lynn’s affidavit and the attached questionnaires to be filed and used as testimony under Equity Rule 48.
- The court treated the dispute as within the class of cases in which expert evidence on consumer/public meaning of a name or mark is appropriate.
- The court rejected the view that timing objections under Rule 48 categorically deprived it of authority to allow the filing.
- The court permitted the expert opinion despite its reliance on questionnaire responses not independently introduced through each respondent, viewing the materials as a proper basis for expert testimony in this context.

## Legal Principles

- In equity actions involving alleged unfair competition or misuse of a trade name/mark, expert testimony may be admitted to address how the relevant public understands a name or designation central to confusion and source-identification.
- An expert’s opinion is not automatically inadmissible merely because it draws on information collected outside court (such as questionnaires); such reliance may affect weight rather than admissibility, especially when underlying materials are produced for review.
- Equity Rule 48 authorizes use of expert affidavits in appropriate cases, and the trial court has discretion to permit filing and use of such affidavits notwithstanding strict procedural objections.
- For evidentiary purposes, the practical inquiry into source significance and likely confusion may be treated similarly whether the designation is labeled a “trade name” or a “trademark.”

## Conclusion

The court permitted survey-based expert affidavit evidence under Equity Rule 48 to help prove what “Elgin” signified to the relevant public, allowing plaintiff to use questionnaire responses and expert analysis to support claims of source identification and likely confusion in a trade-name dispute.


Elgin Nat'l Watch Co. v. Elgin Clock Co., 26 F.2d 376 (D. Del. 1928)